Friday, January 10, 2014
Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.
Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."
But to understand the Maddow theory, one needs to return to 2010. Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court. And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.
But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term. Another Justice, supported by Christie, was due before the Senate. And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative. In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.
Here's the video from the Rachel Maddow Show:
Worth a read with details is the discussion of MSNBC's Steve Benen.
Monday, January 6, 2014
Here's the entire text:
The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.
Note that Justice Sotomayor as the Circuit Justice referred the decision to the full Court, an expected but not necessarily routine process.
The Tenth Circuit itself had denied the properly filed emergency motion for stay, concluding it was not warranted and specifically noting that of the four factors governing a stay pending appeal, two - - - the likelihood of success on appeal and the threat of irreparable harm if the stay is not granted - - - are "most critical, and they require more than a mere possibility of success and irreparable harm, respectively."
The Tenth Circuit also directed expedited review.
The United States Supreme Court's stay thus halts the entering into of same-sex marriages which have been proceeding since the District Judge's order on December 20, but has no effect on the legality of the same-sex marriages entered into during that period.
Sunday, January 5, 2014
The D.C. Circuit on Friday ruled that an opinion of the Office of Legal Counsel that provided a legal justification for the FBI to use "national security letters" to subpoena telephone and financial records that it certifies are connected to an authorized national security investigation is exempt from public disclosure under the FOIA. The ruling in Electronic Frontier Foundation v. U.S. DOJ means that the OLC opinion will remain classified.
The court held that the OLC opinion met the deliberative process privilege because it was requested by the FBI in response to an Office of Inspector General Investigation into the Bureau's use of national security letters:
On the record before us, we hold that the OLC Opinion, which was requested by the FBI in response to the OIG's investigation into its information-gathering techniques, is an "advisory opinion, recommendation and deliberation comprising part of a process by which governmental decisions and policies are formulated," and is therefore covered by the deliberative process privilege. We also hold that the FBI did not "adopt" the OLC Opinion and thereby waive the deliberative process privilege. The OIG mentioned the OLC Opinion in its report, and a congressional committee inquired about the OLC Opinion, but the FBI never itself adopted the OLC Opinion's reasoning as its own. Finally, because the entire OLC Opinion is exempt from disclosure under the deliberative process privilege, we need not decide whether particular sections were properly withheld as classified, or whether some material is reasonably segregable from the material properly withheld.
Op. at 3.
Thursday, January 2, 2014
In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples. He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn.
As the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”
Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate. As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway. And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.
Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:
In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.
The footnote to this passage credits Steve Sanders article:
The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.
In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”
There is much talk about whether and when legal scholarship matters. In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.
January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Chief Justice Roberts again highlighted the lack of resources for the judicial branch in his 2013 year-end report, emphasizing the effects of the sequestration in particular. At the same time, he emphasized the courts' cost-cutting measures.
Chief Justice Roberts wrote that the lack of resources is causing problems across the board:
Sequestration cuts have affected court operations across the spectrum. There are fewer court clerks to process new civil and bankruptcy cases, slowing the intake procedure and propagating delays throughout the litigation process. There are fewer probation and pretrial services officers to protect the public from defendants awaiting trail and from offenders following their incarceration and release into the community. There are fewer public defenders available to vindicate the Constitution's guarantee of counsel to indigent criminal defendants, which leads to postponed trials and delayed justice for the innocent and guilty alike. There is less funding for security guards at federal courthouses, placing judges, court personnel, and the public at greater risk of harm.
Chief Justice Roberts wrote that our judiciary is a "model for justice throughout the world." Still, he wrote, foreign jurists "do raise an eyebrow when I also point out the vital role of the Legislative Branch of government."
The report warned that foregoing requested funding (of $5.05 billion) for a "hard freeze" at the sequester level would have dire consequences:
The future would be bleak: The deep cuts to Judiciary programs would remain in place. In addition, faced with inflation-driven increases in the "must-pay" components of this account, the Judicial Conference would need to cut allocations to the courts nationwide by an additional three percent below fiscal year 2013 levels. Those cuts would lead to the loss of an estimated additional 1,000 court staff. The first consequence would be greater delays in resolving criminal cases. In the civil and bankruptcy venues, further consequences would include commercial activity, lost opportunities, and unvindicated rights. In the criminal venues, those consequences pose a genuine threat to public safety.
The report also warns of dangers to public defender services.
Still, there's a hopeful conclusion:
Both A Christmas Carol and It's a Wonderful Life have happy endings. We are encouraged that the story of funding for the Federal Judiciary--though perhaps not as gripping a tale--will too.
Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions
In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo.
Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment, drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court." He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.
The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:
- “conspicuously protruding” pistol grip
- threaded barrel
- magazine-capacity restrictions
- five-round shotgun limit
- “can be readily restored or converted”
- the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
- “version” of automatic weapon
- manufactured weight
- commercial transfer
The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."
The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.” The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided. Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."
Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings. Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms. Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age) and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court. Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court. Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.
January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, December 30, 2013
As we discussed earlier this month, two federal district judges have reached opposite conclusions regarding the constitutionality of NSA surveillance as revealed by Edward Snowden. In Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Both of these opinions have brought renewed attention to the 1979 “pen register” case - - - Smith v. Maryland - - - which involved the application of the Fourth Amendment’s protection against “unreasonable searches and seizures” to a then new, and now outmoded, technology that could ascertain the number a phone was dialing. As footnote 1 of Smith explained, “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” It is "usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line" to which it is attached.”
In Smith, the Court looked to its “lodestar” 1967 decision in Katz v. United States (involving a telephone booth) and determined that there was no “search” under the Fourth Amendment because the person invoking the constitutional protection did not have a reasonable or legitimate expectation of privacy. For the majority in Smith this lack of an expectation of privacy was based on a consumer’s understanding of telephone technology: telephone subscribers know that the telephone company receives their transmitted telephone number (that is how the call is completed) and can record that number (perhaps for a long distance charge). And even if a consumer does not subjectively understand this, any expectation of privacy that such circumstances did not occur would not be legitimate.
Now Smith v. Maryland has become a “lodestar” decision of its own. Judge Richard Leon's decision in Klayman extensively analyzed the opinion, eventually concluding that “the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.” To the contrary, Judge Pauley, granting the government's motion to dismiss in ACLU v. Clapper essentially used Smith as the opinion's guiding light.
But perhaps the choice is not as stark as whether Smith is steady in the Fourth Amendment skies. Looking at Justice Blackmun’s opinion in Smith, he illuminates the two prongs of Katz:
as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' "—whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances.5
[citations omitted]. Perhaps importantly, the passage ends with a footnote:
Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.
Law Prof Josh Blackman, over at his blog, has revealed the sources of this footnote - - - apparently necessary to address Justice Stevens’ concerns about a totalitarian regime that would make any expectation of privacy by individuals not reasonable or legitimate. Josh Blackman reproduces the correspondence showing that Stevens asked for the footnote and got it, eliminating his need for a separate concurrence.
Apparently, Justices Stewart, Marshall, and Brennan, who did dissent, had concerns that were not so simply assuaged.
Nevertheless, it’s interesting to deliberate footnote 5 in light of the extent to which Edward Snowden’s revelations about the extent of surveillance have been greeted as confirmatory and predictable rather than as shocking and outrageous. And perhaps footnote 5 might become as important as other constitutional footnotes as we (re)consider what the expectations of privacy in a constitutional democracy should be.
[image: time-lapsed image of Polaris, the North Star, via]
Friday, December 27, 2013
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, December 23, 2013
In an opinion today in Obergefell v. Kasich, federal Judge Timothy Black (pictured) of the Southern District of Ohio issued a permanent injunction against a particular enforcement of Ohio's limitation of marriage to opposite sex couples.
Recall that in July, less than a month after the United States Supreme Court's decision in United States v. Windsor declaring DOMA unconstitutional, Judge Black enjoined Ohio's DOMA-type provisions (both statutory and in the state constitution) involving the recognition of a marriage that occurred out of state in an especially sympathetic situation involving a dying person.
In today's opinion, Judge Black - - - as he did in his previous opinion and as Judge Robert Shelby did in his opinion declaring Utah's ban on same-sex marriage unconstitutional - - - used Justice Scalia's dissent in Windsor as support:
In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it’s just a matter of listening and waiting for the other shoe [to drop].” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).
The challenge before Judge Black is an as-applied-one relating to a specific couple, a death certificate, and an out of state marriage.
On the due process challenge, Judge Black concluded that "Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process procedural protection whatsoever."
On the equal protection challenge, Judge Black used a Carolene-type analysis to conclude that sexual orientation classifications merited heightened scrutiny. However, he also decided that the Ohio marriage ban failed to satisfy even rational basis, both because animus was not a legitimate interest and because the non-animus legitimate interests asserted had no rational connection to Ohio's marriage recognition ban of same-sex couples.
Although the final injunction is limited to this particular couple and relates to the death of one of the partners, its reasoning could undoubtedly apply in a facial challenge.
Thursday, December 19, 2013
In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages. The court found that
barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.
Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:
We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.
Nevertheless, the court found that the appropriate level of scrutiny was intermediate:
because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . . the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.” Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.”
The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.
The court found that the same-sex marriage ban did not survive intermediate scrutiny. It considered three governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:
- promoting responsible procreation
- responsible child-rearing
- preventing the deinstitutionalization of marriage
As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it.
As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage." But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.
Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state. Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.
December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)
Monday, December 16, 2013
In his opinion in Klayman v. Obama, federal district judge (DDC) Richard Leon has granted a preliminary injunction against NSA surveillance of telephone metadata. Judge Leon stayed the injunction "in light of the signficant national security interests at stake and the novelty of the constitutional issues." And the preliminary injunction is limited to Larry Klayman and Charles Strange, barring the federal government from "collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts" and requiring the government to destroy any previously collected metadata.
The "background" section of Judge Leon's opinion starts by specifically mentioning the "leaks" (his quotations) of classified material from Edward Snowden revealing the government's Verizon surveillance. He then has an excellent discussion of the facts, statutory frameworks, and judicial review by the FISC (Foreign Intelligence Surveillance Court) [which others have called the FISA Court].
Judge Leon concluded that he did not have jurisdiction under the APA (Administrative Procedure Act), but that the plaintiffs did have standing to raise a constitutional claim under the Fourth Amendment. On the substantial likelihood to prevail on the merits necessary for success on the preliminary injunction, Judge Leon ruled - - - importantly - - - that the collection of metadata did constitute a search. Judge Leon also concluded that the collection of the metadata did violate a reasonable exepectation of privacy. Judge Leon noted that technological changes have made the rationales of Supreme Court precedent difficult to apply, so that cases decided before the rise of cell phones cannot operate as a precedential "North Star" to "navigate these uncharted Fourth Amendment waters."
Having found there was a search that invaded a reasonable expectation of privacy, Judge Leon then concluded that the search was unreasonable. Important to this finding was the efficacy prong of the analysis - - - or in this case, the inefficacy prong. Judge Leon noted that the "Government does not cite a single instance in which the analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original).
Judge Leon acknowledged that some other judges have disagreed with his conclusions, and that the matter is far from clear, but he stated:
I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' that this systemtaic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and anlyzing it without prior judicial approval.
As the above makes clear, it is not only the Fourth Amendment that Judge Leon feels has been violated, but the role of Article III courts in the constitutional separation of powers scheme.
Friday, December 13, 2013
The Senate yesterday confirmed Nina Pillard (Georgetown) to the D.C. Circuit, after previously filibustering her nomination. (The Senate earlier this week confirmed Patricia Millett, another earlier filibustered nominee.)
Think Progress has a really nice piece comparing Pillard to Ruth Bader Ginsburg on her contribution to women's rights, and predicting that she'll "imediately rocket to the top of the Democratic shortlist of potential nominees to the Supreme Court." From TP:
Pillard was a member of the legal team in United States v. Virginia, which eliminated the Virginia Military Institute's discriminatory policies against women and cemented the rule that no law may engage in gender discrimination unless there is an "exceedingly persuasive justification" for doing so. Seven years later, Pillard argued and won Nevada Department of Human Resources v. Hibbs, an important case helping women (and men) with families have a fair opportunity to participate in the workplace.
Indeed, it is likely that there is only one other judge currently on the bench who accomplished as much as a litigator for women's rights as Judge Pillard did in her career as an attorney--Justice Ruth Bader Ginsburg.
Wednesday, December 11, 2013
In its long-awaited opinion in Koushal v. NAZ Foundation, the Supreme Court of India has reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional.
The Supreme Court decision noted that India's sodomy law was pre-constitutional - - - and derived from British rule - - - and also that the Court certainly had the power to declare the law unconstitutional as inconsistent with several provisions of the India Constitution, including
- Article 13 (Laws inconsistent with or in derogation of the fundamental rights)
- Article 14 (Equality before law)
- Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)
- Article 19 (Protection of certain rights regarding freedom of speech etc.)
- Article 21 (Protection of life and personal liberty)
Nevertheless, the Court stated that there is a presumption of constitutionality given the "importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody."
The Court's 98 page opinion authored by Justice Singhvi (who is interestingly scheduled to retire tomorrow, the day after the opinion was rendered), and without a dissenting opinion, criticizes the Dehli Court's reliance on non-national sources:
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.
For United States scholars, such concern for nationalism certainly echoes the dissenting opinion in Lawrence v. Texas, in which the United States Supreme Court held unconstitutional a state law criminalizing sodomy. Yet in the India context, the fact that its constitutionalism is linked to British rule as well as the fact that the sodomy law is a product of colonialism (and is a law that the colonial power has since repudiated as former Australian High Court Judge Michael Kirby has analyzed as England's "least lovely" export) are distinguishing features.
Certainly, however, the problematizing of judicial review in the context of sexuality occurs in the United States cases as well as those from South Africa, an issue extensively discussed here.
And certainly, advocacy on behalf of "the so-called rights of LGBT persons" will be moving to India's Parliament.
[image of Supreme Court of India via]
Wednesday, December 4, 2013
Oral Arguments in United States v. Apel: The Military Facility Protest Case as Raising First Amendment Issues
The Court heard oral arguments today in United States v. Apel, an application and First Amendment challenge to 18 U.S.C. § 1382 regarding trespassing on a military base, in light of a pre-existing order barring Apel from Vandenberg Air Force Base in California. There is a dispute whether the property in question is actually part of the military base and the Ninth Circuit reversed the conviction against Apel, as we discussed in our preview here.
Assistant Solicitor General Benjamin Horwich began by arguing that the statute clearly makes it a crime for a person to "reenter a military base after having been ordered not to do so by the commanding officer" and that the Ninth Circuit erred by adding a requirement that the defendant "must be found in a place that, as a matter of real property law, is within the exclusive possession of the United States." Justice Ginsburg quickly noted that the Air Force manual and a JAG opinion had added those criteria, but Horwich argued those sources were advisory rather than binding. The entirety of Horwich's initial argument was directed towards the characteristics of the properties in question, including a discussion of easements.
Indeed, only with Erwin Chemerinsky's argument on behalf of Apel is the subject of the First Amendment broached. Chemerinsky begins his argument making the constitutional link:
This is a case about the right to peacefully protest on a fully open public road, in a designated protest zone. For decades, every lower Federal court, and, for that matter, the United States itself, interpreted 18 United States Code Section 1382 to apply only if there's exclusive Federal possession. Any other interpretation would raise grave First Amendment issues.
While the specter of unconstitutionality to direct statutory interpretation is not rare - - - think of the use of equal protection in the oral argument in last term's Baby Veronica case for example - - - Chemerinsky struggled to direct some Justices attention to the First Amendment. When Chemerinksy echoed Justice Ginsburg's previous mention of Flower v. United States (1972), Justice Kennedy injected that Flower was a First Amendment case and then repeated this observation, telling counsel to concentrate on the statutory argument. Soon thereafter, Justice Kennedy admonished Chemerinsky ,"You're back on the First Amendment case." And then:
JUSTICE SCALIA: You keep sliding into the First Amendment issue, which is not the issue on which we granted certiorari. We're only interested in whether the statute applies.
MR. CHEMERINSKY: But, Your Honor, in interpreting the statute, it must be done so as to avoid constitutional doubts. That's why the First Amendment comes up. Also, of course, as this Court repeatedly has held, Respondent can raise any issue that was raised below to defend the judgment, which is also why the First Amendment is here.
But Your Honor -
JUSTICE SCALIA: You can raise it, but we don't have to listen to it.
Arguments continued about easements, functional possession, and exclusive possession, and a question from Justice Breyer including the fact that he had "looked at the Google maps."
But then a similar colloquy about the relevance of the First Amendment occurred:
MR. CHEMERINSKY: And this goes to Justice Kennedy's question earlier if we are talking about an easement. An easement that is created for a public road inherently has free speech rights attached to it. In fact, many lower court cases have always said an easement for a public road includes the right to use it for speech purposes. That is very different than an easement that exists for purposes of a utility.
JUSTICE SCALIA: It seems to me a First Amendment argument and not an argument that goes to the scope of Section 1382.
MR. CHEMERINSKY: No, Your Honor, because you need to interpret the statute to avoid the constitutional issues. If you interpret the statute to allow excluding speech on this public road easement in the designated protest zone, then interpreting the statute that way would raise grave First Amendment issues.
JUSTICE SCALIA: So you are saying we should read the statute to say it only applies when it doesn't violate the First Amendment. Of course we'd read it that way.
MR. CHEMERINSKY: Of course, you should read it that way.
JUSTICE SCALIA: But not because it has anything to do with the scope of authority of the government. It's what the government can do. I -- I don't know how to read that, that text, in such a way that it will avoid all First Amendment problems. There is no way to do that.
MR. CHEMERINSKY: I disagree, Your Honor. I think that the reason that every lower court and the United States government itself have read "military installation" as exclusive possession is that otherwise it would raise First Amendment problems.
It was on Horwich's rebuttal that the fact that there is a designated protest area, from which Apel's ban is at issue, became clarified. Justice Kagan asked Horwich to explain the "history of this First Amendment area," to which he replied that it was pursuant to litigation settlement, although he was unable to answer Kagan's follow up question about the type of litigation.
On the whole, it's doubtful that the Court will render an opinion in Apel destined for First Amendment treatises or casebooks. On the other hand, any opinion will surely be written in the shadow of First Amendment doctrine and theory.
Tuesday, December 3, 2013
Ever since the Supreme Court upheld the Affordable Care Act's individual mandate in NFIB, we've been treated to a new and surprising argument by constitutional conservatives. That argument is in favor of judicial activism. Yes, that's right: after years of railing against activist judges, conservatives now claim that the federal courts aren't activist enough, in particular, in checking out-of-control exercises of legislative power.
In a series of new books this fall, and reviews in the WSJ here and here (h/t Jon Gutek), constitutional conservatives argue that government regulation has gone wild, and that the courts have not properly checked this growth. Exhibit A: the Supreme Court's ruling upholding the individual mandate in NFIB.
For example, Randy Barnett, reviewing Clark M. Neily III's Terms of Engagement, argues that Chief Justice Roberts rewrote the individual mandate as a tax, using a "saving construction" as an exercise in judicial restraint in order to uphold a law validly enacted by the legislature. George Melloan, reviewing Josh Blackman's Unprecedented and Ken Cuccinelli's The Last Line of Defense, similarly argued that Chief Justice Roberts saved the mandate by "call[ing] the act's penalty for noncompliance . . . a 'tax' and waved the ACA through."
But this turns history on its head. The government always defended the individual mandate under both its Commerce Clause authority and its taxing power. It argued the tax point explicitly to the Supreme Court, starting at page 52 of its brief. It's hardly novel, then, let alone a rewrite of the Act, that the Court upheld the individual mandate under the taxing power. Indeed, it's exactly what the government argued. This may not be how constitutional conservatives read the Act's mandate, but it's how all three branches of government did. The Court's ruling on the taxing power wasn't a reach to defer to the legislature. Indeed, it wasn't a reach at all.
Barnett's argument that the courts aren't activist enough also ignores the startling activism of the Roberts Court. Remember, the Court rejected the individual mandate under the Commerce Clause, even as it upheld it under the taxing power. The Court also limited the Medicaid expansion component of the ACA. We could go on and on with examples of how this Court overturned state and federal legislative acts, but this one is undoubtedly the biggest: the Court last summer rejected the coverage formula for preclearance under the Voting Rights Act--a provision enacted by a breathtaking bipartisan majority in Congress and signed by a Republican president (no big government types, these). Given the history, it's hard to argue that this wasn't a supremely activist ruling. This Court has demonstrated its appetite for activism. But it's apparently not activist enough.
Barnett goes on to argue that judicial activism in the name of legislative restraint is necessary because voters don't know enough to hold their elected representatives accountable:
In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction. In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs. Because voters know little about these laws and their impact, they can't hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election.
This seems a remarkable claim, given the political backlash to the ACA, or Obamacare, and, as Melloan notes, the political blows that Obamacare supporters suffered in the 2008 mid-terms and beyond. Voters apparently knew how to hold Obamacare supporters accountable. But the claim is also ironic: the very problem that Barnett describes only gets worse with more money in politics--a result that the activist Supreme Court ensured when it overturned congressional regulation of corporate campaign expenditures in Citizens United.
These constitutional conservative talking points fall apart on their own terms. And that's not even getting to the merits.
Monday, December 2, 2013
The Supreme Court today heard oral arguments in Michigan v. Bay Mills Indian Community, the case asking whether a Native American Indian tribe enjoys tribal sovereign immunity against a state's suit against it for operating an illegal casino outside of Indian lands.
One thing seemed clear: the Court is prepared to reconsider the scope of tribal sovereign immunity.
One problem is the odd result under the Tribe's position that a state could sue a tribe for operating a casino on its lands, but not off its lands. The Tribe's position is that the state has a number of other ways to regulate a casino outside Indian lands, short of a suit against the Tribe, which would require relinquishing tribal sovereign immunity. For example, the state could deal with the problem under the required compact between the state and the Tribe; it could sue Tribal officials for injunctive relief under an Ex Parte Young theory; the state could prosecute individuals who work at or frequent the casino; or it could get the federal government to enforce federal law against an illegal, off-Indian land casino. But it's not clear that any of these alternatives would be effective--and the Court seemed skeptical of each of them. In other words, practically speaking, relinquishing tribal sovereign immunity may be the only way that the state could regulate an off-Indian land casino. (The Tribe and federal government both noted that the casino isn't currently operating--that it's waiting for a defiinitive answer to the question whether it can operate legally.)
At the end of the day, this problem may come down to the state's ability to collect money damages--something it can't do if the Tribe enjoys tribal sovereign immunity. Justice Kagan proposed this modification to tribal sovereign immunity to the Tribe's attorney, Neal Katyal:
JUSTICE KAGAN: Mr. Katyal, what is the difference--the State can really--it can shut down these gambling operations easily if it's off Indian lands. What the State can't do is get any kind of damages or money remedies; is't that really the difference?
MR. KATYAL: I do think so. I think that's--I think that that's underlying some of this, absolutely.
JUSTICE KAGAN: Maybe that's an important difference. I mean, maybe we should give the State the ability to collect damages.
Justice Kennedy came at it from a different angle, the problem with the definition of the land where the casino is located:
But if the tribe takes such an obscure position, such a changing position, as to whether or not we are dealing with . . . Indian land, maybe that's a reason why we should confine and limit [tribal immunity as defined in] Kiowa so that it doesn't apply to Indian gaming and we won't have this problem.
Another problem is the odd result that under the Tribe's theory a Native American Indian tribe would enjoy wider sovereign immunity than other states and foreign sovereigns. Chief Justice Roberts put this fine point on the problem:
[Native American Indian tribes are] [d]ependent sovereigns, which is surprising that the scope of their immunity exceeds that of States or foreign sovereigns.
Combining the two problems, Justice Ginsburg proposed this to the Deputy Solicitor General:
Mr. Kneedler, you went through the development of foreign sovereign immunity, and whether the courts were influenced by the government, it was the courts that recognized this distinction between commercial activity and governmental activity.
Why couldn't the court extend that same distinction to Indian tribes and say it makes sense in the foreign country context, it also makes sense in the context of the tribes, to distinguish commercial from governmental?
Finally, there's the problem of who decides on tribal sovereign immunity. Both the Tribe and the federal government argues that Congress should decide. But that didn't sit well with the Court. Justice Ginsburg said this on the question:
Mr. Katyal, isn't it odd to say that when this is the Court--the doctrine of tribal immunity is something that was announced by this Court. Congress never passed a law that said the tribes have immunity. It's all this Court. And then you say what this Court made only Congress can unmake. That seems strange to me.
In all, it seems likely that the Court will redefine the scope of tribal sovereign immunity. It's less clear exactly how: whether the Court will carve out a limited exception to tribal sovereign immunity for off-Indian land commercial activity, or whether it will more substantially restrict tribal sovereign immunity.
That's the question before the Supreme Court today in Michigan v. Bay Mills Indian Community. More particularly, the case asks whether the federal courts have jurisdiction to hear a state's claim that a Native American tribe's off-reservation casino violates the Indian Gaming Regulatory Act, and whether the tribe enjoys immunity from such a suit.
With the rapid proliferation of tribal gaming, including off-reservation gaming, the case could make an important statement about the regulatory authority of the tribe, the state, and the federal government over off-reservation gaming. It could also make an important statement about federal court jurisdiction over a state's claim that a tribe's off-reservation gaming violates federal law, and about tribal immunity for such gaming.
Here's my oral argument preview of the case, republished, with permission, from the ABA Preview of U.S. Supreme Court Cases:
Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) in order to regulate gaming activities on “Indian lands.” The IGRA divides gaming into three separate classes and specifies how each class is regulated. Class I gaming includes social games and traditional tribal games; it is under the exclusive jurisdiction of the tribe. Class II gaming includes bingo and certain card games like poker; it is primarily within the jurisdiction of the tribe but subject to federal oversight.
Class III gaming, the class at issue here, includes everything else, such as slot machines and casino-style games. Class III gaming is not regulated by a uniform structure. Instead, an Indian tribe wishing to conduct Class III gaming has to adopt a gaming ordinance that is approved by the National Indian Gaming Commission (NIGC), a federal agency. The tribe also has to negotiate with the state where it is located and enter into a compact that will govern the gambling.
The Bay Mills Indian Community, a federally-recognized Indian tribe with a reservation in Michigan’s northern peninsula, entered into a compact with Michigan in 1993. Soon after the compact was finalized, the NIGC approved Bay Mills’s gaming ordinance. Bay Mills then proceeded to establish its own Gaming Commission. Bay Mills has continuously operated one or more gaming facilities on its reservation ever since.
In 1997, Congress passed the Michigan Indian Land Claims Settlement Act. The Act appropriated funds to Bay Mills and other Michigan Indian tribes to satisfy judgments that the Indian Claims Commission had entered in favor of the tribes. The Settlement Act directed that 20 percent of the funds awarded to Bay Mills be deposited in a “Land Trust” and required that earnings from the Trust “be used exclusively for improvements on tribal land or the consolidation and enhancement of tribal landholdings through purchase and exchange.” It also said that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.”
In August 2010, Bay Mills used the funds from the Settlement Act land trust to purchase approximately 40 acres of land in Vanderbilt, Michigan, about 100 miles from the Tribe’s reservation. Bay Mills constructed a small casino on the property (initially with 38 electronic gaming machines, but later expanded to 84 machines) and began operating it on November 3, 2010. The U.S. Department of the Interior and the NIGC later issued letters concluding that the Vanderbilt casino was not located on “Indian lands” as defined by the IGRA, that it was therefore not eligible for gaming under the IGRA, and that the NIGC had no jurisdiction over it.
The state filed suit against Bay Mills in federal court. The state’s counts I and II alleged that the Vanderbilt land did not constitute “Indian lands” under the IGRA, and that Bay Mills therefore violated the compact. The state’s count III alleged that Bay Mills violated the IGRA by conducting gaming outside of Indian lands and that even if the Vanderbilt land constituted “Indian lands,” Bay Mills violated 25 U.S.C. § 2719 (and therefore the compact’s requirement that gaming comply with federal law) by operating a gaming facility on land acquired after October 17, 1988, that does not satisfy any statutory exception. The Little Traverse Bay Bands of Odawa Indians, which operated a competing casino about 40 miles away, filed a separate suit with similar claims the next day.
The district court consolidated the cases and entered a preliminary injunction halting the Bay Mills casino. Bay Mills appealed and moved for a stay of the injunction; the district court and the United States Court of Appeals for the Sixth Circuit both denied a stay.
While Bay Mills’s appeal was pending, the state amended its complaint to add three additional claims. Count IV alleged that Bay Mills violated federal common law by operating a casino that exceeds the scope of its authority. Count V alleged that Bay Mills failed to obtain a state license for a gaming facility in violation of Michigan law. Count VI alleged that the casino was a public nuisance under state law. The state also added several defendants—the Bay Mills Tribal Gaming Commission, the Commission’s members in their official capacities, and the members of the Bay Mills Executive Council in their official capacities.
On appeal, the Sixth Circuit reversed and vacated the preliminary injunction. The court held that the district court lacked jurisdiction as to counts I, II, and III. The court held that the district court had jurisdiction as to counts IV, V, and VI against Bay Mills, but that those counts were barred by tribal sovereign immunity. The court remanded the case to the district court to address the state’s counts IV-VI against the additional individual defendants.
The state brought this appeal. Little Traverse is not a party to it; neither are the individuals named in the state’s amended complaint.
Federal courts are courts of limited jurisdiction. This means that their jurisdiction must be defined by statute. One common source of federal jurisdiction is found in 28 U.S.C. § 1331, which creates the so-called “federal question” jurisdiction. Under § 1331, federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.”
Another source of federal jurisdiction—one that goes particularly to gaming on Indian lands—is found in 25 U.S.C. § 2710(d)(7)(A)(ii), part of the NIGC. That provision says that federal district courts have jurisdiction over “any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact . . . .”
The parties here dispute whether the federal courts have jurisdiction over the state’s claims. In particular, they dispute whether the state’s claims arising out of the Bay Mills’s alleged violation of the compact fall under § 1331 (because these claims might amount to a violation of the IGRA, a federal statute), and whether the Vanderbilt casino is “a class III gaming activity located on Indian lands” under § 2710.
But even if a federal court has jurisdiction (under §§ 1331, 2710, or some other federal statute), certain parties, like Indian tribes, enjoy immunity from suit. The Supreme Court has recognized tribal sovereign immunity, and both parties agree that “the doctrine is now part of this Court’s settled precedent . . . .” But they disagree sharply over the extent of that immunity.
The state argues first that the district court has jurisdiction over its suit pursuant to § 2710. The state says that the Vanderbilt casino is “a class III gaming activity located on Indian lands,” because Bay Mills authorized, licensed, and operated the casino from its reservation. More particularly, it contends that § 2710 extends federal court jurisdiction to the gaming itself, but also to the gaming activity, which, the state argues, includes authorizing, licensing, and operating the casino. The state claims that its interpretation of the text is consistent with the congressional intent.
The state argues next that the district court has jurisdiction over its federal claims pursuant to § 1331. The state says that it alleged a violation of the IGRA, a federal statute, when it claimed that Bay Mills violated the compact (in counts I, II, and III). It also says that nothing in the IGRA limits the federal courts’ federal question jurisdiction under § 1331.
The state argues that tribal sovereign immunity does not bar its suit for two independent reasons. First, the state contends that the IGRA abrogated tribal sovereign immunity. The state says that the Court uses a “more holistic approach” in determining whether a federal statute abrogates tribal sovereign immunity, and that the IGRA viewed as a whole (and not just § 2710) makes clear that Congress intended that a state could enforce its gaming laws in federal court against an Indian tribe engaged in off-reservation gaming. The state claims that the opposite rule would lead to an absurd result—that the state could obtain a federal court injunction to stop illegal gaming on Indian lands, but not on its own sovereign state lands. The state says that Congress could not have intended this result.
Second, the state argues that even if the IGRA does not abrogate tribal sovereign immunity, the Court should decline to extend immunity here. The state says that the Court has never expressly extended tribal immunity to a tribe’s off-reservation commercial activities, and, especially given tribal immunity’s “dubious foundation,” the Court should decline to extend it to those activities in this case.
In response, Bay Mills first argues that the state cannot claim that the Vanderbilt casino is “on Indian lands,” as it does in its first point. Bay Mills says that that argument falls outside the questions presented, which speak solely to gaming activities “outside of Indian lands.” But even if this argument were properly before the Court, Bay Mills contends that the state is wrong: the IGRA itself says that a tribe’s decision to open a gaming facility is not a “class III gaming activity.”
Next, Bay Mills argues that it is immune from Michigan’s suit under § 1710. Bay Mills claims that § 1710 only abrogates tribal sovereign immunity “on Indian lands,” and that the whole premise of the state’s claim is that the Vanderbilt casino is off Indian lands. Bay Mills says that under the plain language of § 1710, “Michigan has simply pled itself out of court.”
To the extent that Michigan and its amici argue for a Court-created exception to tribal sovereign immunity, Bay Mills argues that the Court has already rejected the proposed exceptions. Bay Mills also says that the Court has rejected pleas to overrule its tribal sovereignty immunity precedents. Bay Mills contends that it is Congress’s prerogative, not the Court’s, to alter the scope of tribal sovereign immunity, and that Congress has only reaffirmed it. Bay Mills claims that tribal sovereign immunity “has deep roots in this country’s jurisprudence,” and that there is no reason for the Court to abrogate it now.
Finally, Bay Mills argues that the Ninth Circuit decision will not leave the state without a remedy, as the state argues. Bay Mills says that Michigan most obviously can invoke the dispute resolution procedure in the compact. Bay Mills claims that Michigan could also sue tribal officials for injunctive relief. Additionally, Bay Mills argues that the state could negotiate a waiver of sovereign immunity in the next round of compact negotiations, seek federal intervention in the dispute, or even outlaw gaming throughout the state.
The federal government, as amicus in support of Bay Mills, also argues that the federal courts lack jurisdiction over Michigan’s claims. The federal government says that § 2710 does not extend jurisdiction of the state’s claims to the district court. Contrary to the state’s argument, the federal government says that numerous provisions in the IGRA demonstrate that the phrase “class III gaming activities” refers to the games themselves, and not to authorizing, licensing, and operating games. And because the games themselves are not located on Indian lands, § 2710 is not a basis for jurisdiction. Moreover, the federal government says that § 1331 does not extend jurisdiction, because the state’s federal claims (counts I, II, and III) do not fall within § 2710, and because the compact does not contain a provision agreeing to federal court review of the state’s other claims.
Next, the federal government argues that Bay Mills enjoys tribal sovereign immunity. The federal government says that § 2710 did not abrogate sovereign immunity, because the state alleged that the Vanderbilt casino is not on Indian lands. The federal government contends that 18 U.S.C. § 1166 also does not abrogate sovereign immunity, because that statute gives the federal government (not the states) enforcement authority in Indian lands for violations of assimilated state gambling laws. The federal government says that § 1166 does not give states authority to enforce state gambling laws outside Indian lands, and even less to sue the tribe itself. The government contends that tribal sovereign immunity already extends to a tribe’s commercial activities wherever they take place, and that the Court should leave it to Congress to balance the interests of the tribes and the states and to determine the scope of immunity.
Finally, the federal government argues that Michigan has other remedies. Like Bay Mills, the federal government says that the state could seek injunctive relief against an individual tribal official. The federal government claims that the state could also negotiate a waiver of sovereign immunity in the compact. Moreover, the federal government contends that the state could request approval from the NIGC of a site-specific gaming ordinance for the Vanderbilt casino, forcing the NIGC to determine whether the site is eligible for gaming, and appeal the decision in court. Finally, the federal government notes that the state can enforce its own gaming laws against individuals involved in gaming at the Vanderbilt casino. With all these options, the federal government argues that there is no need to diminish tribal sovereign immunity to create a remedy that would resolve this dispute.
At its core, this case is about the allocation of power between states and Indian tribes over the operation of an activity, tribal-sponsored gambling, that has seen astonishing growth in recent decades and today is worth tens of billions of dollars nationwide. (The NIGC tracks this growth in Gaming Revenue Reports, available at http://www.nigc.gov/Gaming_Revenue_Reports.aspx.) Both Indian tribes and states use legalized gaming more and more for revenue, economic development, and economic activity and opportunity. Within this broader context, the regulation of tribal gaming, even at the margins, is itself a high-stakes game.
To be sure, this case deals with only a small part of this larger question, that is: off-reservation gambling. And it involves only special federal jurisdictional and immunity questions that come up in the particular case when an Indian tribe purchases land to build an off-reservation casino.
Still, in the rapidly growing sector of Indian gaming, the case already matters. As Michigan indicates, it “is already aware of at least three additional lawsuits where parties have cited the Sixth Circuit’s decision here in support of a tribe’s operation (or planned operation) of a casino in violation of IGRA or tribal-state gaming compacts.” The state notes that “[a]s tribes continue to look for better casino locations . . . or new ways to profit from the explosion of casino gaming, the friction between state authority and tribal immunity will inevitably increase.” That’s not to say that Michigan’s positions in the case are (necessarily) right, but only that the issues are already significant, and only likely to grow in importance.
Moreover, the issues are highly controversial. On the one hand, many favor expanding off-reservation gaming opportunities, because Indian tribes and states can use off-reservation gaming to generate more revenue and economic development in more attractive locations off the reservations (like closer to urban centers). On the other hand, many oppose off-reservation gaming, because it encroaches on local communities. The debate is playing out in communities across the country where Indian tribes are seeking permission to conduct off-reservation gaming. The debate is also playing out in Washington, where the Obama administration moved in 2011 to loosen requirements for some off-reservation gaming, and where some in Congress have introduced legislation to tighten them. Again, this case sits right at the center of these debates.
Whatever happens in this case, though, it cannot change the basic statutory framework under the IGRA: Indian tribes will still have to adopt a gaming ordinance and negotiate a compact with the state. The compact requirement ensures that both states and Indian tribes will have a significant hand in regulating casino-like tribal gaming. But the outcome of the case may affect how Indian tribes and states negotiate their compacts and the terms they include in them.
It is important to remember that the Department of the Interior and the NIGC issued opinions that the Vanderbilt casino was not on “Indian lands” and was therefore not eligible for gaming under the NGRA. The federal government does not disavow these opinions. Indeed, the federal government sets out an array of options for Michigan to regulate the Vanderbilt casino (and other future casinos), notwithstanding (as the federal government argues) the federal courts’ lack jurisdiction over the state’s claims and Bay Mills’s immunity from suit. In other words, the Sixth Circuit ruling does not mean that Bay Mills can operate its casino, or that other tribes could operate like casinos off reservation, without at least some state and federal oversight and permission.
Finally, the case is significant because it will resolve splits in the circuits. There is disagreement among the circuits on both questions presented—the scope of federal jurisdiction, and the scope of tribal sovereign immunity.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, 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), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, November 25, 2013
Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)
The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000.
The resolution echoes earlier attention to the problem which it defines as including
any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.
The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender. Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?
Professor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn. Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women." She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted. In West Virginia, the Supreme Court of Appeals in Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men. As Goldscheid describes it, the court
concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.
To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible. However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,
the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender. The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services. For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.
These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."
Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing. It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.
Saturday, November 23, 2013
The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel. Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare. Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York found the NYPD's implementation of stop and frisk violative of equal protection.
In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay. This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations. But whatever NYC's motives, the Court rejected the invitation to vacate the opinions.
The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate. However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.” The Second Circuit panel stated:
A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.
It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:
See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.
The Second Circuit panel surely wants to correct the record about the record on this point.