Monday, September 30, 2013
AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting. We previously posted on the ACLU suit against the state here.
The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act. DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect. The Department also seeks "bail-in" under Section 3(c) of the VRA.
The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never. Section 3(c) bail-in works very much like Section 5 preclearance, though. If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."
The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).
September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)
Tuesday, September 24, 2013
The en banc Sixth Circuit divided sharply today over whether Michigan workers could sue their employer, claims manager, and employer's doctor under federal civil RICO for engaging in a fraudulent scheme involving the mail to deny the workers state workers' compensation benefits.
The case, Jackson v. Sedgwick Claims Management Services, Inc., arose when employees of Coca-Cola applied for, and were denied, workers' compensation benefits under Michigan law. The employees sued Coca-Cola, Coke's claims management service, and a cooperating doctor under federal civil RICO for colluding to deny them their benefits. The defendants moved to dismiss, arguing that the claim wasn't cognizable.
The en banc Sixth Circuit agreed. The court held that the plaintiffs failed to allege that they were "injured in [their] business or property" as required by RICO for civil damages.
But then the court went on to say that this conclusion "is confirmed by" the clear-statement principle in Gregory v. Ashcroft. The majority said that under the clear-statement principle Congress must make clear when it intends federal law to displace state law in an area traditionally regulated by the states. Here, the majority held that RICO doesn't have a sufficiently clear statement of intent to displace state workers' compensation law, and so the clear-statement principle confirms the court's conclusion that the plaintiffs can't use federal civil RICO to attack the state workers' compensation scheme.
Judge Moore dissented, joined by four other judges. Judge Moore argued that "the majority makes the erroneous assumption that the clear-statement rule would even apply in this context." She argued that the majority's approach is inconsistent with the Supreme Court's clear instruction to read RICO broadly.
Friday, September 20, 2013
The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law. The Brennan Center's resource page on the case is here.
The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.
Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.
The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).
Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits. Texas's responses to these suits will tell.
September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Thursday, September 19, 2013
The Third Circuit panel this week in NCAA v. Governor of New Jersey upheld the federal law prohibiting states from licensing sports gambling against a challenge that it exceeded congressional authority under the Commerce Clause, impermissibly commandeered the states, and violated the principle of equal sovereignty among the states.
The case was a significant test of congressional authority after NFIB v. Sebelius (upholding the ACA's individual mandate under congressional taxing authority, but ruling that it exceeded congressional Commerce Clause authority) and a significant test of the principle of equal sovereignty among the states after Shelby County v. Holder (ruling that the preclearance formula in the Voting Rights Act violated the principle of equal sovereignty among the states and exceeded congressional authority under the Fifteenth Amendment).
The Third Circuit panel rejected both arguments--and the commandeering argument, too--and upheld the federal prohibition. (The court also ruled that the plaintiffs, sports leagues, had standing to challenge the New Jersey law--in part because the law was directed at them (even if indirectly) and because they would have suffered a reputational injury by association with gambling.)
sponsor, operate, advertise, or promote . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
Wednesday, September 18, 2013
The Sixth Circuit's succinct and unanimous opinion in Autocam Corporation v. Sebelius sided with the Third Circuit's July opinion in Conestoga Wood Specialties and against the en banc Tenth Circuit's June majority opinion in Hobby Lobby on the issue of whether a for-profit secular business has a free exercise of religion right (as a person) under RFRA, the Religious Freedom Restoration Act. There is some intertwining of the First Amendment free exercise of religion claim, but the Autocam decision rests on RFRA.
Autocam, like Conestoga Wood and Hobby Lobby, and its owners, argue that the regulations under the Patient Protection and Affordable Care Act of 2010 (“ACA”) requiring employers cover contraceptive methods for their employees - - - often called the contraceptive mandate - - - infringes on their religious rights. Autocam, like the others, is a large corporation. And a quick look at Autocam's "mission" on its website indicates no expression of a religious purpose, but only providing superior products.
The Sixth Circuit interestingly found that while Autocam as a corporation had standing to assert its claims, the Kennedy family as members (owners?) of a "closely held corporation" did not have shareholder standing: "Generally, shareholders of a corporation cannot bring claims intended to redress injuries to a corporation, even when the corporation is closely held." The Kennedys argued that this rule should not apply in RFRA claims, but the court found nothing in RFRA to support their view. Further, the court rejected their claims they were individually harmed or that a "pass through" theory could be applied.
As to the merits of the corporation's assertion of personhood under RFRA, the court found that RFRA did not support such an interpretation, and moreover, "Reading the term “person” in the manner suggested by Autocam would lead to a significant expansion of the scope of the rights the Free Exercise Clause" protected prior to Employment Division v. Smith and the enactment of RFRA.
By affirming the denial of the preliminary injunction by the district judge, the Sixth Circuit panel has entered the fray of a circuit split on the issue. With its unamious opinion, it does tilt the "count" toward a nonrecognition of religious rights of secular for proft corporations (recall that the en banc Tenth Circuit opinion was closely divided and the Third Circuit panel opinion was also split; additionally earlier this month a senior district judge in the Tenth Circuit applied applied Hobby Lobby to a for-profit nursing home chain.) However, the Sixth Circuit opinion adds little new to the analysis of this issue increasingly ripe for Supreme Court review.
September 18, 2013 in Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Medical Decisions, Opinion Analysis, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, September 11, 2013
Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.
As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.
Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction. This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.
Friday, September 6, 2013
Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.
The give-away comes in the last "Whereas" of the Senate's Syria Resolution. It reads:
Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .
The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power. Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.
Friday, August 30, 2013
The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act. Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement. The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's Voter Information Verification Act, or VIVA.
In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.
The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA. Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.
After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws. The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.
If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.
The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data. We most recently posted on the NSA program, in EFFs suit against it, here.
The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program. The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.
At the same time, the government filed a motion to dismiss. The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.
Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International. In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States. The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them.
Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients. In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.
August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, August 23, 2013
The United States Department of Justice sued the State of Texas in federal court seeking to halt the state's voter ID law and to subject the state to ongoing court monitoring under the Voting Rights Act.
The case comes in response to the Texas Attorney General's announcement that the state would move to implement its restrictive voter ID law. The law, SB 14, was denied preclearance under Section 5 of the Voting Rights Act by a three-judge federal court. But the Supreme Court struck Section 5 this summer in Shelby County v. Holder, and vacated the lower federal court's denial of preclearance of SB 14 (and a federal court's denial of preclearance in another case, involving Texas redistricting plans), leaving Texas open to enforce SB 14. (Our coverage of Shelby County is here.) The state AG announced within hours of the Shelby County ruling that the state would move to enforce it. Now the Justice Department has sued to stop it.
DOJ argues that SB 14 violates Section 2 of the VRA both because it was enacted with a discriminatory intent and because it would have a discriminatory effect on the state's Hispanic population. DOJ seeks declaratory and injunctive relief, and continuing federal court monitoring of the state through a preclearance requirement under the "opt-in" provision in Section 3(c) of the VRA. (AG Holder previously announced that he'd seek an opt-in preclearance requirement for Texas in the redistricting case.)
Texas AG Greg Abbott responded to the suit in a press release and gave a glimpse of his defense--the Tenth Amendment.
Just two months ago the U.S. Supreme Court struck down federal preapproval of state election laws. The Court emphasized that the Tenth Amendment empowers states--not the federal government--to regulate elections. The Obama administration continues to ignore the Tenth Amendment and repeated Supreme Court decisions upholding states' authority to enforce voter identification and redistricting laws.
Friday, August 9, 2013
President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices." He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court. He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."
As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program. That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority. The administration also focused on controls over abuse of the authority under Section 215.
The document argues that the program violates neither the Fourth Amendment nor the First Amendment. As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).
As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content. Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.
August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Monday, August 5, 2013
Recall that the district court dismissed the case for lack of standing and for raising a political question. The defendants in their brief raised those issues and another ground for dismissal: the claims are barred by the Speech or Debate Clause. The defendants said that "[u]nder that Clause, Senate officers are absolutely immune from suit for any actions assisting the Senate in carrying out debate under its rules because such acts fall squarely within the sphere of legitimate legislative activity protected from questioning by the Clause." Brief of Appellees at 21.
Common Cause responded:
Actions that violate the Constitution are not "within the sphere of legitimate legislative activity"--they are ultra vires. As the Supreme Court held in Powell, Dombrowski and Kilbourn, "legislative employees who participated in the unconstitutional activity" are not immune from suit under the Speech or Debate Clause and are "responsible for their acts." Powell.
Reply Brief at 30.
Thursday, August 1, 2013
The Third Circuit has had yet another opportunity to review the constititionality of the city of Hazleton's extensive immigration ordinances in its new opinion in Lozano v. City of Hazleton [Pennsylvania]. Recall that the United States Supreme Court granted the City's petition for a writ of certiorari and vacated the Third Circuit's previous decision in light of Chamber of Commerce of United States of America v. Whiting.
In 2010, the Third Circuit panel, affirming the district court, had rendered an extensive 188 page opinion in unanimously finding that the two ordinances of Hazleton, Pennsylvania regulating immigration were pre-empted by the federal immigration scheme. The employment provision in Hazleton made it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and required employer affidavits. The ordinances also had a housing provision making it unlawful for landlords to rent to unlawful residents.
In its new opinion, the panel - - - again consisting of Chief Judge McKee and Judge Nygaard, with the previous designated judge now replaced by Judge Vanaskie - - - found that Whiting, as well as the Court's subsequent decision in Arizona v. United States regarding the notorious SB1070, did not command a different result. Instead, the court again concluded that " both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law.”
Regarding the employment provisions of the Hazleton ordinance, the Third Circuit panel found that the Court's opinions in Whiting and Arizona did alter some of its previous analysis, but that the employment provisions of the Hazleton ordinance were so broad in their coverage of both actors and activities that they were an obstacle to the federal immigration law and were thus pre-empted.
As to the housing provisions, the court found:
No part of Whiting or Arizona considered provisions of a state or local ordinance that, like the housing provisions here, prohibit, and define “harboring” to include, allowing unauthorized aliens to reside in rental housing. Moreover, nothing in Whiting or Arizona undermines our analysis of the contested housing provisions here. On the contrary, the Court‟s language reinforces our view that Hazleton‟s attempt to prohibit unauthorized aliens from renting dwelling units in the City are pre-empted.
Thus, the Third Circuit reaffirmed its view that the Hazelton ordinance is unconstitutional as pre-empted.
In considering whether or not to pursue a second petition for writ of certiorari to the United States Supreme Court, the City of Hazleton will undoubtedly be considering the extensive litigation costs it has already expended and deciding whether it should spend even more, although reportedly some costs have been paid by private contributions.
Monday, July 29, 2013
opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.
Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed. Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.
First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010). The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:
In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.
The majority distinguished religious organizations, such as those involved in Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations."
Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners. The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion. However, it rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form." For the majority, it is a "fundamental principle" that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation." Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation." Moreover, because
Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.
(emphasis in original).
The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.
In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit." Judge Jordan's dissent is clearly deeply felt, stating that
the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.
I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.
Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue. Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.
July 29, 2013 in Cases and Case Materials, Congressional Authority, Current Affairs, First Amendment, Gender, Interpretation, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, July 25, 2013
AG Eric Holder announced today that the U.S. Department of Justice will ask a federal district court in Texas to bail-in Texas for preclearance under the Voting Rights Act. The move, the Department's first after the Supreme Court struck the Section 4 coverage formula for preclearance in Shelby County v. Holder, is part of Holder's announced strategy to use still-available portions of the Voting Rights Act (like bail-in and Section 2 litigation) to enforce voting rights.
If successful, bail-in would mean that Texas would be subject to the preclearance requirement, notwithstanding the Court's ruling in Shelby County. That's because the Court in Shelby County struck the coverage formula for preclearance (in Section 4 of the VRA), but didn't touch other portions of the VRA, including the bail-in provision in Section 3(c). (It also didn't touch Section 5, the preclearance provision.) Under the bail-in provision in Section 3(c), the DOJ can seek continued federal court monitoring of an offending jurisdiction, a freeze on the jurisdiction's election laws, and a requirement that the jurisdiction get permission, or preclearance, from the court or the DOJ before it makes any changes to its election laws.
AG Holder cited the federal court's rejection of preclearance to Texas's redistricting, which the court said had both the purpose and effect of discriminating in the vote, as support for his action. (Recall that the Supreme Court vacated that federal court's rejection of preclearance shortly after it handed down Shelby County.)
If successful, AG Holder will subject Texas again to preclearance. This approach, seeking individual jurisdiction bail-in under Section 3(c) of the VRA, is a more tailored way to target particularly offending jurisdictions than the coverage formula in Section 4, struck by the Court in Shelby County. Still, it may face some of the same problems that Section 4 faced in Shelby County--particularly, it may run up against the new "equal state sovereignty" doctrine that we wrote about here.
July 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.
July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Thursday, July 18, 2013
Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them. The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim. Here's our post on the first.
Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.
Judge Collyer went on to address the merits, too. She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide. Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.
July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 17, 2013
Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo! The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge. (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)
But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.
FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.
Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations. Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:
To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed." But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.
In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.
Mazur's letter also cites the IRC:
The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.
This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations.