Constitutional Law Prof Blog

State Court Did Not Lack Jurisdiction Over Malpractice Claim in Patent Suit

The Supreme Court ruled yesterday in Gunn v. Minton that a federal statute granting jurisdiction over cases related to patents to federal courts alone did not mean that a state court lacked jurisdiction to hear an attorney malpractice case that grew out of such a patent case.  Let's unpack that:

Minton brought a patent infringement suit in federal court and lost.  Minton's attorneys didn't timely raise an argument that he thought was a winner, and the federal courts held that he waived it.  So he brought a malpractice suit against his attorneys in state court for waiving the argument.  He lost there, too.  On appeal, he argued that federal courts had exclusive jurisdiction over the malpractice claim, and that the state trial court (which ruled against him) lacked jurisdiction. 

Minton's argument turned on two points.  First, 28 U.S.C. Sec. 1338(a) gives federal courts exclusive jurisdiction over any case "arising under any Act of Congress relating to patents."  Next, his malpractice claim required the court to determine whether his waived argument in the original case--an argument based on federal patent law--would have gone his way.  (If the waived argument would have gone his way, he might've succeeded in arguing that his attorneys engaged in malpractice by raising it too late.)  In short, according to Minton: federal law requires that only federal courts determine issues of patents, and his malpractice claim turned on an issue of patents (even if a hypothetical one).

The Supreme Court disagreed.  In a unanimous opinion by Chief Justice Roberts, the Court wrote that Minton's patent claim was, indeed, hypothetical--a case within a case--and that the state court's ruling on it (as part of the malpractice case) wouldn't have had any significant national impact.  The ruling was based on the three factors in Grable & Sons Metal Products v. Darue Engineering (2005).  That case said that when federal law didn't actually create the cause of action (as here, because Minton's claim was based on state malpractice law), the case can "aris[e] under" federal patent law only if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities."  The Court ruled that Minton's case didn't satisfy the "substantial" part of that test, because the patent question was merely hypothetical and wouldn't have any significant national impact.

SDS

A Drone Court . . . in the Executive Branch?

While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch.  Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings.  The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.

According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court.  But ideas so far locate the court in the judiciary.  Katyal sees a problem with that:

There are many reasons a drone court composed of generalist federal judges will not work.  They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact,  not beforehand.

But putting oversight authority in the executive branch, staffed by experts, would solve that problem.  And Katyal says that an executive branch "court" could still be subject to a check--by Congress:

The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible.  Those decisions would later be given to the Congressional intelligence committees for review.  Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program.  Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.

SDS

Supreme Court Rules Child Return Order Not Moot on Appeal

A unanimous Supreme Court ruled today that a district court's order that a child return to his or her home country is not moot on appeal just because any relief ordered on appeal is unlikely to get the child back to the U.S.  The ruling means that the lower court can determine whether the district court's return order was in error--potentially resulting in a re-return order that may or may not have any practical effect.

The case, Chafin v. Chafin, arises out of an international custody dispute between a U.S.-citizen-dad and a U.K.-citizen-mom.  Under the Hague Convention on the Civil Aspects of International Child Abduction, which is designed to work these things out, a federal district court ordered the return of the child to her country of "habitual residence," Scotland, and mom took her there.  Dad appealed, but the circuit court dismissed the case as moot, saying that it "became powerless" to grant relief.  What it meant was that it couldn't reverse the district court and order it to re-return the child (because the courts don't have authority for re-return), and in any event a re-return order wouldn't be effective

The Supreme Court disagreed.  Chief Justice Roberts wrote for a unanimous Court that a case doesn't become moot just because a court may not have authority to grant the requested relief (in this case a re-return, which goes to the merits, not mootness, according to the Court) or just because the court's order is unlikely to have any practical effect. 

Mr. Chafin's claim for re-return--under the Convention itself or according to general equitable principles--cannot be dismissed as so implausible that it is insufficient to preserve jurisdiction . . . and his prospects of success are therefore not pertinent to the mootness inquiry.

As to the effectiveness of any relief . . . even if Scotland were to ignore a U.S. re-return order, or decline to assist in enforcing it, this case would not be moot.  The U.S. courts continue to have personal jurisdiction over Ms. Chafin, may command her to take action even outside the United States, and may back up any such command with sanctions.  No law of physics prevents E.C.'s return from Scotland . . . and Ms. Chafin might decide to comply with an order against her and return E.C. to the United States.

Op. at 8-9 (citations omitted).

Justice Ginsburg, joined by Justices Scalia and Breyer, wrote in concurrence that international shuttling is no good for a child, and that Congress and the courts might work out a more streamlined procedure to protect against putting a child in this position in the first place.

SDS

Is the First Amendment Civil Rights Claim in Jeopardy?

Judge James E. Boasberg (D.D.C.) in two separate cases in the last four weeks or so rebuffed an argument by the U.S. Attorney's Office for the District of Columbia that a plaintiff has no Bivens claim against federal officers for violation of First Amendment free speech rights.  The holdings in these cases were unremarkable, given the state of circuit law and the approach in other circuits to the question--which recognize a plaintiff's cause of action to bring a First Amendment claim against federal officers.  But the government's argument that the plaintiffs in these recent cases lacked this cause of action raises the specter that First Amendment Bivens claims could be on the chopping block.

(A Bivens claim is a suit against a federal officer for a violation of a constitutional right.  There's no statutory authorization for this kind of suit (as there is against a state officer for violation of a constitutional right, under 42 U.S.C. Sec. 1983), and so the Supreme Court has implied a cause of action for cases against federal officers involving certain constitutional rights.  "Bivens" refers to the pioneering case imlying such a cause of action, Bivens v. Six Unknown Named Agents.)

It's hardly surprising that the federal government would press the position that Bivens claims are limited and ought not to be extended beyond those discrete constituitonal claims where the Supreme Court has recognized them.  And it's not news that this Supreme Court might not be particularly amenable to Bivens claims beyond those that it already recognized (and it hasn't recognized a Bivens claim under the First Amendment).

But the government's argument in the two recent D.C. District cases may suggest a new line of attack, based on language in a recent Supreme Court case, Ashcroft v. Iqbal.

Iqbal famously reaffirmed that there's no vicarious liability under Bivens.  It also famously said that Bivens complaints need to meet a certain threshold of specificity--a new, higher threshold that made it more difficult to bring these kinds of claims.  But it also said something else: It said that the Court is reluctant to extend Bivens to claims that it has not yet recognized, and it noted that it had not yet recognized a Bivens claim based on the First Amendment.  The Court wrote:

Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability "to any new context or new category of defendants."  [Citations omitted.]  That reluctance might well have disposed of respondent's First Amendment claim of religious discrimination.  For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, [citation omitted], we have not found an implied damages remedy under the Free Exercise Clause.  Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment.  Bush v. Lucas, 462 U.S. 367 (1983).

Iqbal at 11.  (In Bush, the Court rejected the petitioner's Bivens-free speech claim because there was a comprehensive statutory scheme already available to him.)

The government seized on this language from Iqbal in the two recent cases in the D.C. District and argued that it raised the question whether long-standing circuit law recognizing a First Amendment claim under Bivens was still viable.

Judge Boasberg rejected the argument:

Even if Defendants are correct in predicting the Supreme Court's response to questions not yet before it, this Court cannot accept its invitation to depart from this Circuit's binding precedent.

That circuit precedent goes back to Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977).  And as Judge Boasberg wrote, the Third and Ninth Circuits have also recognized First Amendment claims pursuant to Bivens.

This government line of attack, based on language in Iqbal, may not mean anything other than the government predictably arguing for a narrow Bivens doctrine.  Or it may be the start of a new and revived effort to put Bivens-First Amendment claims that are recognized by the lower courts before the Supreme Court--and on the chopping block.

Judge Boasberg's ruling in Bloem v. Unknown Department of the Interior Employees allowed an Occupy-DC protester's claim to go forward against Interior employees for confiscating his property from the McPherson Square protest site.  Judge Boasberg's ruling in Hartley v. Wilfert allowed a protester's claim to go forward against Secret Services officers who stopped her and asked for personal information as she tried to communicate a message about sex discrimination in law enforcement in front of the White House.  In addition to ruling that Bivens extended to both First Amendment claims, Judge Boasberg also rejected the officers' qualified immunity claims.

SDS

Is the Violence Against Women Act Unconstitutional?

The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members.  The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.

The Heritage Foundation outlined the argument in a post today.  According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III.  The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III.  They therefore can't mete out punishment against non-Indians.

To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes.  Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies.  Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.

The Supreme Court has weighed in, but barely.  It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians.  In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.  

The Heritage Foundation piece takes the congressionally-delegated-power view.  This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements.  (You might ask why the piece didn't argue that they similarly have to meet due process requirements.  The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)

The Senate took the inherent-authority view.  Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons."  (Emphasis added.)

Which view is right?  Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct.  But that view might not get five Justices on the current Court.  So we're not sure how the Court would rule.

The Congressional Research Service has a terrific report on the issue here.

SDS

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

Plaintiff Has Standing to Challenge DEA Stance on Marijuana, But Loses on Merits

The D.C. Circuit ruled today that a disabled veteran had standing to challenge in federal court the Drug Enforcement Agency's decision not to downgrade marijuana from a Schedule I drug.  Even so, the court ruled against him on the merits.  The ruling means that DEA's decision not to downgrade marijuana stands, and marijuana continues to be a Schedule I drug.

The case, Americans for Safe Access v. DEA, arose when the Coalition to Reschedule Cannabis petitioned the DEA to reschedule marijuana and downgrade it from a Schedule I drug.  The DEA declined, and the petitioners sought APA review in federal court.  Once in court, the petitioners' Article III standing became an issue, and the D.C. Circuit ordered argument on it.

The two-judge majority held that one petitioner, Michael Krawitz, a disabled veteran, had standing--and therefore that the case could move to the merits.  Krawitz received pain management treatment from the VA.  But as part of the program, the VA required him to sign a "Contract for Controlled Substance Prescription" that would have prohibited him from using medical marijuana.  Krawitz refused to sign and turned to a non-VA physician in Oregon to obtain the referral forms required to participate in that state's medical marijuana program.  Pursuant to VA policy, the VA did not pay for this.  (VA policy prohibits VA providers from completing forms seeking recommendations or opinions regarding a vet's participation in a state marijuana program.)

The court ruled that Krawitz had standing--that he showed sufficient harm, causation, and redressability to get his foot in the door in federal court.  Harm was easy: the court said that Krawitz's out-of-pocket expenses constituted sufficient harm.  Causation and redressability were a little harder.  The lynchpin for the court was that the DEA classification was the definitive classification for the federal government, including other agencies like the VA, creating a tight enough relationship between the DEA classification and the VA policy.  Thus when the VA required Krawitz to sign that he'd forego medical marijuana and refused to pay for it, it did so because the DEA listed marijuana as a Schedule I drug; that's causation.  And if Krawitz were to win on the merits--and get DEA to downgrade marijuana--the VA would follow suit and drop its requirement that pain management patients forego medical marijuana; that's redressability.  All this means that the VA wasn't some random third-party intervenor breaking the causation and redressability chain between the DEA and Krawitz; instead, the VA policy was driven by the DEA classification.  Here's how the court explained it:

Congress made clear when it passed the [Controlled Substances Act] that the [DEA's] scheduling decisions should serve as the federal government's "authoritative statement" on the legitimacy of particular narcotics and dangerous drugs. . . .  When the DEA classified marijuana as a Schedule I drug, pursuant to its delegated authority under the CSA, it announced an authoritative value judgment that surely was meant to affect the policies of third-party federal agencies.

Unsurprisingly, the VA has heeded the DEA's judgment regarding marijuana, thus making the question of causation relatively easy in this case.

. . .

The only reason the VA cites for implementing [its policy on marijuana] is the classification of marijuana as a Schedule I drug.  Therefore, were marijuana rescheduled to reflect its potential for medical use, the VA would have no expressed reason to retain [its policy] and VA clinicians would likely be subject to a non-discretionary duty to complete Krawitz's state medical marijuana forms.

Op. at 18-20.

(Judge Henderson wrote in dissent that Krawitz's standing arguments came too late.)

But even as the court ruled in favor of standing, it ruled against the petitioners on the merits.  It held that the DEA's decision not to reclassify marijuana wasn't arbitrary and capricious--in particular, that substantial evidence supported the agency's determination that studies showing a "currently accepted medical use" do not exist.

SDS

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

Judge Dismisses FOIA Request for Legal Justification of Targeted Killings

Judge McMahon (SDNY) ruled Wednesday in New York Times Co. v. U.S. Dep't of Justice that the government need not disclose its legal justification for targeted killings in response to the plaintiffs' FOIA requests.  The ruling means that any OLC memo providing a legal justification for targeted killings (or any other government-issued legal justification) will remain under wraps unless and until the ruling is successfully appealed.

The case involves FOIA requests by the New York Times and Charlie Savage and Scott Shane, and the ACLU, for the government's legal justification for its targeted killing program--in particular, any OLC memos outlining the legal justification.  We covered the Times's complaint here; we covered the ACLU's complaint here.

The court held that FOIA did not compel the disclosure of any government legal analysis of the program, but not before outlining in some detail why "there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive . . . ."  Op. at 17.  The court also noted the troublesome nature of its holding:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.  The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules--a veritable Catch-22.  I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with out Constitution and laws, while keeping the reasons for their conclusions a secret.  

Op. at 3.

In this lengthy opinion, Judge McMahon also surveys the several statements by Administration officials on the legality of targeted killing, in order to address (and reject) the plaintiffs' waiver arguments.

The court declined in camera review of withheld documents (in order to evaluate the government's claims under Exemptions 1 and 3), concluding that it didn't need in camera review to fully evaluate Exemptions 1 and 3, because Exemption 5 applied.  (Exemption 5 exempts disclosure of inter- or intra-agency documents that wouldn't be available to a party in litigation.  The government argued, and the court agreed, that the requested documents were covered by attorney-client and deliberative process privileges.)

The court granted the government's motion for summary judgment in full, "except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to two Unclassified Memos on its Vaugh Index."  Op. at 68.

SDS

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR
[image via]

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

In Memoriam: Robert Bork

Conservative - - - and controversial - - - jurist and unsuccessful Supreme Court nominee Robert Bork has died as reported in the New York Times.

Bork's views on privacy, including when his own was arguably violated during his nomination process, and his views on civil liberties, including when he was was a law professor, marked him as conservative.  But perhaps he will be best remembered for the anti-Bork forces that prevented his nomination to the highest court.

He discusses his nomination process and general theories of constitutional law in his book, The Tempting of America, and updated some of these views in his later book Slouching Towards Gomorrah: Modern Liberalism and American Decline.

RR

Government Moves to Dismiss Targeted Killings Case

The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi.  We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise.  It raises all the expected separation-of-powers arguments, plus a couple others.  As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis.  That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad.  The Judiciary rarely interferes in such arenas.  In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive.  They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns.  Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities.  Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed.  Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows.  Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case.  If this recent history is any guide, this case, too, will have a hard time getting off the ground.

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

Daily Read: Greenhouse on Standing in the Same-Sex Marriage Cases

The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.

The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011). 

The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."

Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."

But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.

Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.

RR

Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

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This is definitey worth a listen!

RR

Jurisdictional Requirement for TSA Challenges Upheld

The Fourth Circuit upheld a federal statute requring challenges to Transportation Security Administration orders, including TSA airport checkpoint screening procedures (body scans, patdowns), to be filed in in the first instance in a federal appeals court. 

The plaintiffs in Blitz v. Napolitano challenged the jurisdictional requirement, 49 U.S.C. Sec. 46110, as violating due process and separation-of-powers principles--arguing that the requirement prevented them from developing a factual record in district court.  The Fourth Circuit rejected those claims and upheld the statute.

The court wrote that a circuit court, faced with a Section 46110 challenge, could remand the case for factual development, if necessary.  Moreover,

There is nothing unique in Congress's adoption of Section 46110, thereby vesting judicial review of orders of the TSA Administrator in an appropriate court of appeals.  Indeed, agency decisions are commonly subject to such jurisdiction-channeling provisions, and final agency actions are generally reviewed in the courts of appeals.

Op. at 14-15.

The ruling is consistent with rulings in the D.C. and Eleventh Circuits.

SDS

Daily Read: Rostron on the Second Amendment After Heller and McDonald

The central argument of ConLawProf Allen Rostron's article, Justice Breyer’s Triumph in the Third Battle over the Second Amendment, published at 80 George Washington Law Review 703 (2012), and available in draft on ssrn, received further validation with yesterday's Second Circuit opinion upholding a New York law restricting concealed carrying of firearms in public. 

Rostron (pictured) considers the range of lower court decisions resulting from challenges to state and local firearm regulations made possible by the Court's recent Second Amendment decisions.  Heller v. District of Columbia, the first "battle" in the gun wars, recognized a Second Amendment right beyond the militia, and in the second battle of 2010, the Court in McDonald v. City of Chicago, incorporated this right to the states through the Fourteenth Amendment.  However, in neither "battle" did the Supreme Court specify what level of scrutiny or test should be used to assess the validity of gun laws under the Second Amendment, leaving the lower courts to struggle with this issue.

Rostron's contribution is his engagement with the third "battle": the interpretation and application of Heller and McDonald in the lower courts.  He argues that the third phase of the fight over the right to keep and bear arms is moving toward an unusual result, with these decisions reflecting the "pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald,"  rather than the majority, plurality, or concurring opinions that are long on history and rhetoric and short on doctrine or guidance. 

Rostron is candid about his own preferences and equally candid that the politics or doctrine could shift, including the Court's grant of certiorari in an additional case in order to promulgate a strict scrutiny standard.  For now, however, Rostron's compelling article demonstrates that Breyer's dissent operates in many ways as a majority opinion.

Of course, if Breyer's view had prevailed in the controversial 5-4 decisions in Heller and McDonald, the federal courts would not be busily adjudicating these Second Amendment challenges.

RR

Daily Read: Political Parties and Judging

It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges. 

Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit.  Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president."   This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner. 

Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof."  Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."

Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.

For Liptak, however, there is predictive certainty.  Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:

The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.

RR
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Supreme Court Puts Voting Rights in Crosshairs

The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006.  The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws.  The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states.  The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality.  Thus Section 5 survived Northwest Austin--but just barely.

The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage.  Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws.  The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null.  But a ruling overturning only Section 4(b) could leave Section 5 in place.  Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).

The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization.  But it seems highly unlikely.  Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b).  Here's the QP:

Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns.  Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.

The Court took no action on another Section 5 challenge, Nix.  Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.

SDS