Constitutional Law Prof Blog

D.C. Circuit Vacates al Bahlul's Military Tribunal Conviction

The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others.  (Thanks to Lawfare for the links.)  The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II.  (The government made the latter point in order to preserve the argument for appeal.)

Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012.  The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.

The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too.  But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.  

The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.

SDS

Daily Read: Vicki Jackson on BLAG's Lack of Standing in Windsor, the DOMA Case

In her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing.  (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).

Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,

the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of  DOMA.  As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation. 

[citations omitted].  The brief contends:

BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.

Central to Jackson's argument is INS v. Chadha (1983).   She stresses that Chadha concluded that  “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor.  Additionally, Jackson analogizes to the primary holding in Chadha on the merits:

In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.”  If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”

[citations omitted].

The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court.  It is worth a read!

RR

Senate Passes Modest Filibuster Reform, No Talking Filibuster

Senate leaders today reached an agreement on modest filibuster reforms, according to WaPo, NYT, and others, retaining the 60-vote requirement to end a filibuster and rejecting the talking filibuster option.  We last posted on this here.  There appear to be two principal changes:

• The new rules will short-circuit a filibuster vote on a "motion to proceed," when the Senate takes up legislation.  Opponents of measures have used this filibuster at the beginning of debate to slow up or even block legislation.  The change will remove a significant procedural hurdle and pave a clearer path to passage, although opponents could still filibuster later.  In exchange, opponents of legislation will be able to offer at least two amendments.
• The new rules limit debate on lower-court nominees and lower-level executive nominees to a few hours.  Supreme Court nominees, circuit court nominees, and cabinet-level spots are not part of this agreement.

The talking filibuster is not part of the agreement; neither is a proposal to require opponents to muster 41 votes (instead of requiring proponents to muster 60).  The 60-vote requirement to end a filibuster and advance a bill stays in place.

The Senate voted by large majorities for the measures, and Senator Reid therefore did not need to use the constitutional option.

SDS

President to Nominate Cordray (again) to Lead CFPB

President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo.  Cordray is currently serving in that role as a recess appointee.

Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him.  Republicans objected to both the CFPB and to Cordray.  We posted on substantive objections here; we posted on procedural and constitutional objections here.

Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets.  They promise to (again) create a stir in Congress.

SDS

Stockman, Paul Seek to Overturn Obama's Orders on Gun Control

Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control.  Politico reports here; The Hill here; and Stockman's press release is here.  (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)

According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both.  As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws."  Stockman's legislation, the Restore The Constitution Act, would

declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.

SDS

Talking Filibuster Appears Dead

Senate Majority Whip Dick Durbin (Ill.) said today that the Democrats didn't have 51 votes to pass a talking filibuster, according to The Hill.  (Why 51?  Because Senator Reid held open the first legislative day, on which the Senate can pass rules changes with a bare majority, in case Senator McConnell failed to agree to any meaningful reform.)  Even as Senate Majority Leader Reid awaits Minority Leader McConnell's reponse to more modest reform proposals, the talking filibuster appears to be off the table.  

The talking filibuster would have required a Senator who wished to filibuster to take the floor and talk, old style.  It would have put an end to the silent filibuster--the practice in which a single anonymous Senator can merely threaten a filibuster and thus hold up a bill, or nominee, and Senate business--and would have required a filibustering Senator to publicize their objections . . . and themselves.  While it was favored by many, Senator Durbin's announcement today means that it's almost certain not to be part of the final filibuster reform agreement.

SDS

Is the Debt-Ceiling Bill Designed to Self-Destruct?

House Republicans added a provision to the temporary debt-ceiling increase in H.R. 325 that would halt congressional salaries if Congress fails to pass a budget this year.  But Michael Froomkin argues at his blog, Discourse.net, that this provision, a violation of the Twenty-Seventh Amendment, could torpedo the debt-ceiling increase itself, if the provision's not severable from the rest of the bill.  In other words, if a disgruntled member of Congress sued after he or she didn't get paid, a ruling that the pay holiday violated the Twenty-Seventh Amendment could take down the temporary debt-ceiling increase in the bill, as well.  The result: A court, not Congress, would invalidate the debt-ceiling increase, and Congress could walk away with clean hands.  As Froomkin suggests, a strategically minded opponent of the debt-ceiling increase might even have designed it this way.

As Froomkin argues, the severability question all depends on how tightly the debt-ceiling increase and the congressional pay-stoppage are linked.  And Froomkin says that the more that members of Congress link the two provisions in their arguments for the bill, the more likely it is that a court would find the pay-stoppage non-severable. 

The other piece, of course, is the Twenty-Seventh Amendment.  There's not a lot of case-law out there--just one case, in fact, with rulings from the D.C. District and D.C. Circuit courts (and with a congressman named John Boehner as plaintiff)--but that case and the Amendment's plain text suggest that the pay-stoppage could well violate the Amendment.  H.R. 325 seeks to dodge this by holding halted congressional pay in escrow.  But Froomkin argues that that gambit is unlikely to work--that halting salary and holding it in escrow is by any reckoning "varying the compensation of the Senators and Representatives."

SDS

Modest Filibuster Reform Close

Senate Majority Leader Harry Reid and Republican Leader Mitch McConnell are close to agreement on modest reforms of the Senate's filibuster, according to The Hill and WaPo.  As we wrote here, Senator Reid kept the first legislative day of the Senate open in order to preserve the "constitutional option"--a change in the cloture rule by a mere majority of the Senate, as part of that body's enactment of its rules on the opening day of the Congress.  (The constitutional option allows the Senate to change its rules on the first day of a new Congress under the default majority-rule rule, and not under the super-majority required by the cloture rule, Rule XXII.)  Although it appears that Senator Reid will keep the legislative day open until the parties reach a final agreement, it also appears unlikely that Senator Reid will exercise the constitutional option.

Instead, reform will be relatively modest.  Maybe most notably, the agreement would require the minority party to muster 41 votes to stall a bill, changing the current practice that requires the majority to find 60 votes to end a filibuster.  This could be significant: it would end the practice of an anonymous hold, in which a single unnamed Senator can maintain a filibuster unless and until the majority can round up 60 votes.  Other minor changes are designed to reduce delays and move business along.  The talking filibuster doesn't appear to be a part of the package.

SDS

Carol Anne Bond Going Back to the Supreme Court

The Court granted certiorari Friday in Bond v. United States - - - again.

Recall that the first time the Court heard Carol Anne Bond's case, it held that she did indeed have standing to assert a Tenth Amendment argument against her charge for violating 18 U.S.C. § 229(a), enacted by Congress to implement the United States’ treaty obligations under an international arms-control agreement, the Chemical Weapons Convention, that 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.

On remand, the Third Circuit held that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  While the Circuit did find the prosecution of Bond puzzling, there was also much puzzlement over the statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."

It seems the Supreme Court is ready to clarify - - - or attempt to - - - Missouri v. Holland's famous statement. 

RR
[image of Methyldichloroarsine via]

Court to Test Limits of Congressional Authority Over Sex Offender Registration

The Supreme Court on Friday agreed to hear a case asking whether Congress had authority to require a sex offender who already served out his sentence to later register when he moved within a single state.  The case comes three years on the heels of United States v. Comstock, another case involving congressional authority over federal criminals after their sentences have run, and one suggesting expansive congressional authority.  (Comstock held that Congress had authority under the Necessary and Proper Clause to designate federal prisoners as "sexually dangerous" and to detain them even beyond their original sentence.)  It also comes just one year after the Court's sharply divided and controversial ruling in NFIB v. Sebelius, the ACA/Obamacare challenge defining a limit on congressional authority and holding that Congress lacked authority under the Commerce Clause to require individuals to purchase health insurance.  (NFIB also held that Congress had authority under its taxing power to require individuals to purchase health insurance.)  This case, United States v. Kebodeaux, thus gives the Roberts Court yet another important opportunity to define congressional authority and to read that authority as relatively broad (as in Comstock) or to find an important limit (as in NFIB--even if a different limit than the Court found in that case).

Kebodeaux involves a challenge to the federal Sex Offender Registration and Notification Act, or SORNA.  SORNA, enacted in July 2006, requires sex offenders to register in the jurisdiction where they live.  It requires states to adopt specified federal standards for registration as a condition of receipt of federal funds.

Kebodeaux, a convicted sex offender who served out his sentence and was released from prison "unconditionally" (the Fifth Circuit's word), was convicted of violating SORNA by failing to register when he moved from El Paso to San Antonio.  Kebodeaux challenged his conviction on appeal, arguing that Congress lacked authority to penalize his failure to register in a purely intrastate move, because he had served his full sentence and was released by the time Congress enacted the registration requirement in SORNA.

The en banc Fifth Circuit agreed.  It ruled that Congress had no authority over Kebodeaux when he made an intrastate move after he served out his full sentence.  In short, the court said that the period of time between Kebodeaux's release and Congress's enactment of the registration requirement in SORNA broke the chain linking congressional authority and Kebodeaux, and Kebodeaux did not re-establish that chain (by way of the Commerce Clause) by crossing state lines.  The court distinguished Comstock on exactly that basis: in Comstock, the federal government still had physical control over federal prisoners designated "sexually dangerous," even if they were literally on their way out of the federal prison, and thus had authority to regulate them by ordering their continued detention; here, in contrast, the federal government had no control over Kebodeaux. 

Kebodeaux's facts go beyond those in Comstock, however, because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence.  Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime.

Op. at 6.

The court also worries that this authority would know no bounds and would intrude into areas of state regulation.  And it worries that there is no authority, "from more than two hundred years of precedent, for the proposition that it can reassert jurisdiction over someone it had long ago unconditionally released from custody just because he once committed a federal crime."  Op. at 9. 

If these worries sound familiar, it's because similar worries drove the opponents of the ACA/Obamacare, and ultimately even the Court, in ruling that Congress exceeded its Commerce Clause authority in enacting the universal coverage provision, or the so-called individual mandate, in NFIB v. Sebelius.  Many of us didn't see this coming in NFIB.  A similar limit on congressional authority may be creeping up on us now.

On the other hand, the panel decision and sharp dissents in the Fifth Circuit en banc ruling argued that Comstock supported congressional authority to apply SORNA's registration requirements to Kebodeaux.  This case could well follow Comstock and (again) highlight expansive congressional authority over those once in federal control. 

Either way, Comstock, the sleeper of OT2009, will play a key role in the outcome.  And the case will give us one more important datapoint to plot the trajectory of congressional authority under the Roberts Court.

SDS

 

President Obama's Signing Statement on NDAA

President Obama signed the National Defense Authorization Act for FY 2013 this week and, just as he did on last year's NDAA, issued a signing statement objecting to several provisions on separation-of-powers grounds.  In characteristic language, the President said that he will implement those provisions "to avoid a constitutional conflict."  This means, largely, that the administration will ignore them.  But it's unlikely that the administration will act contrary to all of them.

Perhaps the most notable provisions restrict the President's use of funds to transfer detainees out of Guantanamo Bay--either to the U.S. for criminal trials in regular Article III courts, or to other countries--or to house detainees in the U.S.  Last year's NDAA also contained similar restrictions.  These provisions--Sections 1022, 1027, and 1028--are designed to prevent the President from closing Guantanamo and detaining suspected terrorists in the United States; they effectively foiled the President's plans last year to close Guantanamo.

But another provision, Section 1025, new this year, similarly restricts the President's use of funds to transfer detainees out of the detention facility in Parwan, Afghanistan.  The President wrote,

That facility is located within the territory of a foreign sovereign in the midst of an armed conflict.  Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress.  Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities. 

The President also objected to provisions interfering with his authority to conduct foreign relations and supervise the executive branch.  As to the latter, Sections 827 and 828 enhance whistleblower protection for executive branch contractors.  The President wrote, "I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

Section 1034 requires the President to "transmit to the congressional defense committees a report by the Commander of the United States Strategic Command, without change, detailing whether the recommended reduction would create a strategic imbalance or degrade deterrence and extended deterrence between the total number of nuclear weapons of the United States and the total number of nuclear weapons of the Russian Federation."  President Obama wrote, "section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command."

SDS

Filibuster Reform?

As the Senate convenes today, and just a week after Judge Sullivan dismissed a legal challenge to the filibuster--there's talk once again of filibuster reform.  We posted on similar talk two years ago, at the start of the 112th Congress, with links to other resources.

The Hill reports that Majority Leader Reid will recess the Senate at the end of today's session, extending the first day of the session until later this month, when the body reconvenes.  This will keep the "constitutional option" on the table and allow the Senate to pass filibuster reform with a bare majority.  (Filibuster reform is made more difficult, because a Senator could filibuster a bill to change the filibuster rule itself--requiring a super-majority to change the filibuster.  But the Senate can dodge the super-majority requirement by enacting filibuster reform on the first day of the legislative session--the day on which the body re-adopts its own rules, using default parliamentary majority rule.)  The threat of the option could inspire compromise.

According to the report, the Levin-McCain plan will be the starting point for negotiations on reform.  But there are still strong advocates in the Senate for the talking filibuster.

SDS

Judge Sullivan Dismisses Filibuster Challenge

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule.  Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center.  it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.

The ruling ends the case, unless and until the plaintiffs appeal.  It seems unlikely that the D.C. Circuit would rule differently.  In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing.  As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd."  Op. at 2.  As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted."  Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote.  "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court."  Op. at 3.

SDS

Justice Ginsburg Keeps NDAA's Indefinite Detention in Place Pending Appeal

Justice Ginsburg on Friday declined to reinstate a permanent injunction against the government's detention authority in the National Defense Authorization Act.  The ruling means that the NDAA's authorization for detention stays on the books pending appeal of the case, Hedges v. Obama, to the Second Circuit.

We covered the district court case and ruling here.

Recall that the plaintiffs in Hedges, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 of the NDAA violated the First Amendment.  That Section provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Force of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

We covered the NDAA here.

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons" based on their communications with certain individuals overseas.

Judge Katherine B. Forrest (SDNY) agreed and issued a permenant injunction this past September.  But the Second Circuit stayed that injunction in October and ordered expedited review.

On Friday, Justice Ginsburg denied the plaintiffs' request to vacate the Second Circuit stay.  She cited her own previous denial of an application to vacate a stay in Doe v. Gonzales, a case challenging the FBI's authority to collect electronic communications for use in anti-terrorism investigations under the PATRIOT Act.  Just like Judge Forrest here, the district court in Doe ruled that portion of the PATRIOT Act unconstitutional; and just like the Second Circuit here, the Second Circuit stayed that ruling and ordered an expedited appeal.

Thus it's a mistake to read Justice Ginsburg's denial as a ruling on the merits.  Instead, she appears to be letting the case run its course at the Second Circuit.  She said as much, writing, "Respect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition."

SDS

Filibuster Challenge Goes to Court

Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule.  We posted on the case back in May, when it was filed.  Roll Call summarized the arguments here.  Common Cause has a case resource page here.

Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule.  Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens.  See our May post for more on the particular arguments and for background on the filibuster.

According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster).  Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues."  But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple.  (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)

The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress.  We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.

SDS

Court's Ruling on Medicaid Expansion Doesn't Threaten Title IX, Martin Argues

Emily J. Martin, Vice-President and General Counsel at the National Women's Law Center, published an American Constitution Society Issue Brief that argues that the Supreme Court's ruling last summer on the ACA's Medicaid expansion in Nat'l Fed. of Ind. Business v. Sebelius does not threaten Title IX.

Recall that the Court ruled in NFIB that Congress exceeded its authority in enacting the Medicaid expansion component of the ACA.  The Medicaid expansion provision provided generous federal financial assistance for states that expanded their Medicaid programs to reach those up to 133% of the federal poverty level.  Some states balked, arguing that this was way too heavy-handed, given the size of Medicaid and their reliance on it.  In other words, states argued that Congress couldn't force them to choose between expanding their Medicaid programs and foregoing all federal Medicaid funding.

The Supreme Court agreed.  Chief Justice Roberts wrote for a plurality that Medicaid expansion was a new program, not just an addition to the existing Medicaid program, and that the sheer size of Medicaid--and the threat of its entire loss--made the ACA's Medicaid expansion unduly coercive on the states.  At the same time, the plurality wrote that Congress could condition receipt of incremental and additional Medicaid funds under the ACA on a state's expansion of Medicaid.

Some thought that this approach to Congress's spending power threatened other federal spending programs, in particular Title IX.  Title IX prohibits public and private educational institutions that receive federal funds from discriminating on the basis of sex.  Some suggested that under NFIB, Title IX, like Medicaid expansion, might be unduly coercive, because it might require an educational institution to forego all federal funding if it discriminates against women.

Martin says this is wrong.  She writes that NFIB doesn't even apply Title IX and private educational institutions: NFIB's approach--and the Spending Clause approach generally--is concerned about coercion of states, not private actors.  As to states, she argues that unlike the ACA's Medicaid expansion, Title IX operates to limit the termination of federal funds "to the particular program . . . in which . . . noncompliance has been so found."  20 U.S.C. Sec. 1682.  In short, noncompliant state institutions wouldn't stand to lose their entire federal educational budget (as they could stand to lose their entire Medicaid budget under the ACA); instead, they'd lose only that portion tied to the sex discrimination.

Martin says that Title IX is protected from NFIB for another reason: Congress also had authority to enact Title IX under Section 5 of the Fourteenth Amendment.  She argues that this belt on top of the Spending Clause's suspenders ensures that Title IX is well within congressional authority.

SDS

District Court Upholds Federal Ban on Body Armor

Judge Thomas Johnston (WDWV) ruled in U.S. v. Mark that the federal ban on body armor possession by a convicted felon did not violate the Second Amendment or Due Process Clause, and that Congress did not exceed its authority in enacting the ban under the Commerce Clause.

Mark brought his challenge after he was charged and convicted of possession of body armor by a felon under 18 U.S.C. Secs. 931 and 921(a)(35).  Federal marshalls found the body armor, along with a cache of weapons, in a protective sweep of his home after his arrest. 

Judge Johnston ruled that the statutes did not violate the Second Amendment, because there was no indication that the Framers intended to protect body armor in the Second Amendment, and there was no case law on body armor providing any additional guidance.  He wrote that the statutes were not unconstitutionally vague under due process in defining "body armor," because Section 931 gives a definition "that is readily understandable to the ordinary person."  Op. at 19.  And he held that the jurisdictional element in Section 931 was indistinguishable from the jurisdictional element in 18 U.S.C. Sec. 922(g)(1), the statute penalizing possession of firearms by convicted felons and upheld by the Fourth Circuit--on the basis of its jurisdictional element.

Judge Johnston also ruled the marshalls' search, a protective sweep of the home after arrest, didn't violate the Fourth Amendment.

SDS

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

• Whether the mandates violate the Religion Clauses or the RFRA;
• Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
• Whether the mandates violate equal protection;
• Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

Election Reform in Congress

In the wake of the 2012 election, members introduced several measures to facilitate quick and easy voting, to establish a period for early voting, to establish penalties for interfering with voting, and to make voting easier for overseas military:

• H.R. 6591 and S. 3635, the Fair, Accurate, Secure, and Timely (FAST) Voting Act of 2012, which provides financial incentives to states to invest in practices and technologies that are designed to expedite voting at the polls and to simplify registration.
• H.R. 6591, the SIMPLE Voting Act, which amends the Help America Vote Act of 2012 to require states to establish a minimum period of 15 days for early voting prior to the date of election for federal office and to ensure that no individual will be required to wait for longer than one hour to cast a ballot at a polling place in an election for federal office.
• H.R. 6593, the Voter Fraud Prevention Act of 2012, which amends the National Voter Registration Act of 1993 to increase the penalties for intimidating, threatening, or coercing any person from engaging in voter registration or for procuring, submitting, or casting false voter registration applications or ballots, and to require election officials to transmit balloting materials to absent members of the military using the automated tagging and tracing services of the Postal Service.
• H.R. 6594, the Military Ballot Integrity Act of 2012, which requires states that fail to transmit valid requested absentee ballots in an election for federal office to absent members of the military within a specified deadline to delay certifying the election results, and to provide a private right of action to enforce that requirement.

In addition, Rep. Steve Israel (D-NY) introduced H.J. Res. 121, proposing a constitutional amendment that would grant 29 extra votes in the electoral college to the winner of the national popular vote.  Why 29?  It's the average of the state with the most votes (California, at 55) and the states and D.C. with the least (3).  According to HuffPo, it would encourage candidates to spend more time campaigning in states where they already have a lock, in order to ensure a popular vote victory to get the extra 29.  Here's Rep. Israel's explanation.  Section 1 reads:

In an election for President and Vice President, after the popular vote has been counted and electors have been appointed in each of the several States and the District constituting the seat of Government of the United States, each State and the District shall report the total number of popular votes cast for each of the candidates.  The candidate receiving the largest percentage of the total popular vote as reported by the several States and the District shall receive 29 electoral votes in addition to those cast by the Electors chosen by the several States and the District.  These votes shall not be considered votes cast by Electors and shall not affect the total number of votes necessary to constitute a majority of the whole number of Electors appointed.

SDS

Eleventh Circuit Says Maritime Drug Law Enforcement Act Exceeds Congressional Authority

A three-judge panel of the Eleventh Circuit ruled in U.S. v. Ballaizac-Hurtado that Congress lacks authority to enact the Maritime Drug Law Enforcement Act.  The ruling reverses four convictions of defendants who were charged under the Act for drug crimes that occurred in Panama.  

The ruling could strike a blow at federal enforcement of extraterritorial drug crimes not committed on the high seas.  (The court distinguished those cases, because Congress has independent authority to restrict conduct on the high seas.)  While the ruling is limited to the facts of the case (i.e., outside the U.S., but not on the high seas), it's easy to see how it could apply to other, similar cases.  That means for now--unless and until the government appeals and wins--federal criminal charges under the Act for drug trafficking outside the U.S., but not on the high seas, won't stand in the Eleventh Circuit.

The court held that Congress lacked authority to enact the Act as applied to the defendants under its power to "define and punish . . . Offenses against the Law of Nations."  Art. I, Sec. 8, cl. 10.  The problem: The Clause authorizes Congress to "define and punish" offenses that are recognized under customary international law; and drug trafficking is not one of them.  The court reviewed the history (or lack of history) of the law of international drug trafficking from the founding period through today and concluded that there simply was no customary international law prohibiting drug trafficking.  Instead, "unlike genocide, the international community has addressed drug trafficking at the domestic, instead of international, level."  Op. at 21.

As to any treaties on drug trafficking, the court said that certain affected States simply ignore them, making their obligations "not a matter of mutual legal obligation under customary international law."  The court explained:

The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law.  Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade.  The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.

Op. at 20.  (As the court explained, "[t]reaties may constitute evidence of customary international law, but 'will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treat, and those States uniformly and consistently act in accordance with its principles.'"  Op. at 18, quoting Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).)

The court also ruled that the power to "define . . . Offenses against the Law of Nations" didn't stretch congressional authority any, because to "define" simply means to re-state, not to re-define or to create.  For example, the Clause doesn't give Congress power to re-define "piracy" as including "murder" and thus expand its authority by way of mere definition.  Instead, to "define" authorizes Congress only to codify existing customary international law--as it actually exists.  The court looked to the text, history, and structure of the Clause to arrive at this conclusion, and, in particular, the limited power of the federal government.

SDS