Monday, June 2, 2014

Carol Anne Bond Prevails in United States Supreme Court: Court Avoids Treaty Power Ruling

On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.

Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."

Today's opinion in Bond v. United States again reverses the Third Circuit.  The focus in oral argument  was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  And while today's decision is unanimous, there are multiple concurring opinions.

The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited."  For the Court,

the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.

Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power. 

Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue. 

In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.

863px-CWC_Participation.svg
Nations in green are signatories to
Chemical Weapons Convention via

Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional.  Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power."  And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."

So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."

And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.

June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

Global Day of Action to Close Guantanamo

Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility.  Amnesty International's press release is here.

Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay.  We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places.  The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.

May 23, 2014 in Congressional Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Schiff Talks AUMF on NPR

Rep. Adam Schiff (D-Cal.) spoke this morning with Steve Inskeep on Morning Edition about the AUMF.  The interview came a day after the House rejected a measure to set an end date on the Authorization.

Schiff said that the AUMF has been invoked as legal authority for actions both longer and broader than originally intended.  He also said that Congress has abdicated its responsibility in checking its use.

We posted most recently on legislation related to the AUMF here, after Senate Majority Leader Harry Reid announced that he'd like to reconsider it. 

May 23, 2014 in Congressional Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Rethinking War Powers

Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force.  The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda.  Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.

At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally.  They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking  members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict."  The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas.  The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force.  (The Senate has taken no action on the measure.)

According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ."  According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:

Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.

May 15, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Court to Rule on Separation of Powers in Foreign Affairs

The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits.  The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem.  Our latest post on the case, with links to earlier posts, is here.

The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel." 

The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question.  On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations. 

In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.

April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Friday, April 11, 2014

No Invalid Delegation in Sex Offender Registration Act

The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.

The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.

Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006.  Congress passed SORNA in July 2006.  Cooper was charged with failing to register in 2012.

Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation.  SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."

Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S.  That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them.  Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable."  We posted on the case and Justice Scalia's concern here.

But the Third Circuit rejected Cooper's claim.  The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:

In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority.  This is all that is required under the modern nondelegation jurisprudence.

The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."

April 11, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Muller on Standing and Political Question in Kerr

Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper.  Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question.  We posted here.

Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":

It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands.  Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years.  Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.

The Tenth Circuit remanded the case, and the district court is preparing for trial.  We'll surely see this one again.

April 10, 2014 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Obamacare Challenges in the D.C. Circuit

Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit.  One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little  Sisters case and, more recently, Notre Dame's case at the Seventh Circuit.  (Those rulings were on injunctions against the accommodation pending appeal.  Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit.  In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal.  The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.) 

The other case, Sissel v. HHS, is less well known.  It challenges the universal coverage provision, or the so-called individual mandate.  Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause.  But it originated in the Senate.  Plaintiffs say it's therefore invalid.

Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases.  That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees).  Judge Rogers is also on the panel.

April 9, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Ninth Circuit on the Equal Protection Rights of Immigrants in Hawai'i's Health Program

In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge.  The court reversed the preliminary injunction entered by the district judge.

There are several layers of complexity in the case.  There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.

Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages.   As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option.  The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant.  The "COFA aliens" are in the third category of state option.  At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded.  It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.

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Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent.  As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review."  In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review."  What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction?  Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."

Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.  

Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice. 

Hawaii songsHe does note:

I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.

While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.

April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Friday, March 28, 2014

D.C. Circuit Appears Split in Latest Obamacare Challenge

A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange.  We posted on those cases here.  In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange.  This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy.  So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).

That rule is what's at issue in these cases.  The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges).  Jason Millman over at the WaPo's Wonkblog explains the significance:

The subsidy question is central to the future survival of the law.  Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.

About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage.  Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage.  That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."

The D.C. Circuit is the first appellate court to hear arguments in these challenges.  Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote.  The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.

March 28, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

False Equivalence Between Senate Oversight and CIA Spying

Conor Friedersdorf writes over at The Atlantic that media coverage of the dispute between Senator Dianne Feinstein and the CIA over the Agency's spying on Congress wrongly puts concerns about CIA oversight on par with concerns about Senate investigations in the separation-of-powers calculus.

Recall that Senator Feinstein recently criticized the CIA for spying on the Senate Intelligence Committee.  The CIA responded that Committee staff improperly obtained CIA material in its investigation of CIA detention and interrogation policies.  Both matters are now at the DOJ.

Friedersdorf argues (persuasively) that media coverage of the competing claims wrongly puts them on par.  He says that the Senate Intelligence Committee is supposed to investigate the CIA (it is), and that even if Committee staff obtained CIA information, it was information that the CIA was supposed to turn over anyway.  The real transgression is not Committee oversight; it's the CIA's spying on Congress.

What vexes me about how this dispute is being covered . . . is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like transgressions.  If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any surveillance in the U.S., snooped on our legislature.  That's a transgression against our constitutional framework.

At the same time:

Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was justified in withholding torture documents?  Senate staffers committed no great sin in getting documents wrongly denied them.

March 24, 2014 in Congressional Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2014

District Judge Orders Election Commission to Include Proof of Citizenship on Federal Form

Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.

Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.  Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship.  The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration.  The Court said that Arizona impermissibly required more.

Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system.  That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections. 

That seemed inefficient (among other things), to say the least.

Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship. 

The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship.  This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler.  If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.

The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship.  The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. 

The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.

That's exactly what Kansas and Arizona did.  The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.

Judge Melgren agreed.  He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):

But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship.  In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it.  Therefore, the Court must find that the NVRA is silent on the subject.  Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.

Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause.  Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.

March 19, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Feinstein Rails Against CIA Search of Committee Computers

Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things. 

The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies.  (CIA Director John Brennan denied this.)  The CIA Inspector General referred the matter to the Justice Department.

In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material.  Senator Feinstein said that this move was designed to intimidate the Committee. 

As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material.  The NYT has a good back-grounder here

March 11, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Court Grants Certiorari in Bearded Prisoner Religious Freedom Case

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”

455px-Meister_von_San_Vitale_in_Ravenna_013Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith  [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores.   RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases,  prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.

Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally.  For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.

The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages.  Here's the court's analysis:

we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).

The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising.  Fegans  is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.

The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.

[image via]

March 3, 2014 in Congressional Authority, Federalism, First Amendment, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, February 27, 2014

Pro Publica on Voting Changes Since Shelby County

Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County.  The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.

Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority.  Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace.  Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.

In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling.  Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.

February 27, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.

The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act).  The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues.  The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."

The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.

Daywefightback

While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments.  Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.

February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Daily Read: The Intercept on the NSA and Targeted Killing

A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today.  It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.

Intercept

Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."

The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program.  It ends by implicating President Obama:

Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.

And Obama may even think it's one a "strong suit" of his.

This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.

February 10, 2014 in Congressional Authority, Executive Authority, Foreign Affairs, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Fourth Circuit Upholds Fannie and Freddie Tax Exemption

The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.

The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts.  It underscores federal supremacy, even in the area of state and local taxes.  It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.

The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell.  Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed." 

The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.

But that's not the interesting part.  The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.

The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority.  "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity."  The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty.  "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."

The court also rejected the plaintiffs' contentions that the exemption violated federalism principles.  The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie. 

January 30, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)