Constitutional Law Prof Blog

Third Circuit Rejects Broad Side Challenge to Congressional Reapportionment Process

Here's one we don't see everyday:

Citizen Eugene Martin Lavergne sued a who's-who of federal officers, arguing that the federal law saying how to reapportion congressional representatives in the wake of the census violated "Article the First," or the Congressional Apportionment Amendment, among other actual constitutional claims.

Not surprisingly, the Third Circuit rejected the claims.

Recall that Article the First was the first of twelve proposed amendments coming out of the First Congress and submitted to state legislatures for ratification.  Article the First never got enough states on board, though, even as Articles the Third through Twelfth became the Bill of Rights.  (Article the Second became the Twenty-Seventh Amendment, ratified 203 years after its introduction, on May 7, 1992.)  Article the First says,

After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Was Article the First actually ratified?  Here's Lavergne's math, from paragraph 59 of his complaint:

Article V of the United States Constitution is silent on the issue of fractional numbers and how they affect--or do not affect--the "three-fourths" language regarding ratification of proposed amendments by the States.  [It] is also silent on the issue of whether the "three-fourths" of the States referred to in Article V refers to the 3/4 of the States admitted at the time that the amendment was originally proposed, or whether that number changes as additional States are admitted to the Union before a given ratification process is concluded.  Even if the Law is that the 3/4 requirement changes and increases whenever a State joins the Union, when Kentucky became the 15th State and ratified "Article the First", the "pure numerical ratio" of "three-fourths" was 11.25 States, and Kentucky was the 11th State to ratify.  If fractional numbers are disregarded, or fractional numbers less than .49 are "rounded down" to the last whole number, then "Article the First" actually was ratified in 1792.  If any fractional number requires advancing to the next whole number, then "Article the First" was not ratified.  . . .  This Court is now being asked to answer these questions.

Weighty stuff, but the Third Circuit didn't bite: "Putting aside the considerable factual and historical problems with [Lavergne's] argument, '[t]he issue of whether a constitutional amendment has been properly ratified is a political question.'"  Op. at 5-6 (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990).)  

The Third Circuit also rejected Lavergne's handful of other, actual constitutional arguments (separation-of-powers and nondelegation doctrine claims based on the process of reapportionment, and a one-person-one-vote claim), ruling as a threshold matter that he lacked standing, and then rejecting the claims on their merits.

SDS

What is Originalism Again? Scalia and Posner Debate the Meaning of "Legislative" History

The very public disagreements between Antonin Scalia and Richard Posner are of interest to ConLaw because of their relevance to originalism as a constitutional theoretical perspective.

Recall that the book Reading Law: The Interpretation of Legal Texts, co-authored by Antonin Scalia and Bryan Garner, is largely devoted to the question of statutory interpretation, although there are constitutional references peppered throughout, including a passage directed at "living constitutionalism." 

A review of the book in The New Republic by well-known Seventh Circuit Judge Richard Posner (pictured) was overwhelmingly negative and included this passage:

Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.

Posner later adapted the argument even more bluntly: 

Heller probably is the best-known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism. It is unconvincing.

The discussion escalated, with Justice Scalia stating in an interview, ""To say that I used legislative history is simply, to put it bluntly, a lie."

Posner responded yesterday:

I had indicated what I meant by legislative history when I had said that in seeking the original eighteenth-century meaning of the text of the Second Amendment Justice Scalia had been doing legislative history. His quest for original meaning had taken him to a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense that he argued had been codified in the Second Amendment. He may not consider such a historical inquiry to be an exercise of “legislative history,” because he defines legislative history very narrowly (and in the interview calls it “garbage”). His coauthor, Bryan Garner, does not define it so. Here is the definition of the term in Black’s Law Dictionary (9th ed. 2009), of which Garner is the editor: “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” The “background and events leading to the enactment” of the Second Amendment are the focus of the Heller opinion.

Even if I accepted Scalia’s narrow definition of “legislative history” and applied it to his opinion in Heller, I would not be telling a “lie.” For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598–599, 603–605. 

So I would not have been lying, or even mistaken, had I said in my book review that in Heller Scalia “actually resorts” to “legislative history” in its narrowest sense (“drafting history”). But I did not say that.

One might ask whether or not the Constitution has a legislative history? 

Yet that question may be less interesting than what is at stake in this dispute, if anything.  ConLawProf Eric Segall, arguing for the dispute's relevance, correctly points out:

In a few months, the Court will likely decide whether the University of Texas may use racial preferences to redress generations of discrimination, and whether Congress may continue to insure that states with a history of voter suppression don't make it harder for minorities to vote. The relevant text and history of these two disputes will be contested and Posner would likely defer to politically accountable officials on both questions. Scalia will almost certainly vote to strike down these efforts to confront our racist past and then claim that neutral canons of constitutional interpretation require him to do so.

For the cynical, this leaves interpretative strategies and theoretical perspectives simply strategies to achieve desired outcomes.  And perhaps that is the relevance of the dispute over legislative history.

RR

 

Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:

 

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

 

The full post is here.

RR
[image via]

Portions of Arizona's SB 1070 Now in Effect

In a one page Order, Judge Susan Bolton has dissolved the preliminary injunction she issued regarding Section 2(B) of S.B. 1070, the so-called "show me your papers" provision.

This was inevitable given her opinion earlier this month ruling that it would be premature to declare the provision unconstitutional, resting her conclusion - - - perhaps erroneously as we discussed - - - on the United States Supreme Court's opinion in Arizona v. United States last June.

RR

 

Tenth Circuit Rejects Challenge to the Kansas Judicial Nominating Commission

A three-judge panel of the Tenth Circuit ruled in Dool v. Burke that the election procedure for attorney members of the Kansas Judicial Nominating Commission did not violate the Equal Protection Clause.  The ruling affirms a lower court decision and means that the procedure remains in place.   We posted on the complaint and motion for preliminary injunction here.

The Judicial Nominating Commission is comprised of nine-members--a chairperson (who is a lawyer licensed and residing in Kansas) and one attorney and one non-attorney from each of the state's four congressional districts.  The attorney members are elected by licensed attorneys residing in the respective congressional districts; the chairperson is elected by Kansas attorneys voting at large.  The non-attorney members are appointed by the governor.

Whenever a state appellate court vacancy arises (including a vacancy in the state supreme court), the Commission generates a short list of candidates based on a competitive application process.  The governor then selects the appointee to fill the vacancy from among those on the short list.  Still, all judges--including those appointed by way of the Commission--are subject to periodic retention elections in which Kansas voters may vote them out.

The plaintiffs, non-attorneys, argued that the election procedure for attorney members of the Commission closed the attorney seats to non-attorneys in violation of the one-person-one-vote principle set out in Reynolds v. Sims. 

The Tenth Circuit disagreed.  In a very brief, per curiam opinion, the court rejected the plaintiffs' claims and upheld the lower court's ruling denying preliminary relief and dismissing the case.

Judge O'Brien concurred, arguing that the Commission didn't possess the kind of general government functions and direct government power that would trigger strict scrutiny analysis of its election procedure under Avery v. Midland Cnty. Tex.--the post-Reynolds case that said that Reynolds applied with equal force to officials of a county government who exercised "general governmental powers over the entire geographic area served by the body."  Judge O'Brien also noted that the Commission serves a separation-of-powers function (insulating the judiciary from threats of control and threats to its integrity by the executive)--that it was created in direct response to an embarrassing episode in which the governor engineered his own appointment as Chief Justice--and that the federal Constitution does not prescribe any particular structure of government on the states.

Judge Matheson went a step further in a separate concurrence, arguing that the Commission satisfied the Salyer/Ball exception to Reynolds: that Reynolds doesn't apply to elections for limited-purpose bodies exercising narrow government functions and operating to the burden or benefit of one group of constituents more than others.  Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.; Ball v. James.

Judge McKay dissented, arguing that the Commission's work is quintessential governmental--the appointment of judges--even if it's indirect and mediated by the governor's independent appointment (from the Commission's short list).

SDS

Toobin's "The Oath"

Jeffrey Toobin's much-anticipated The Oath: The Obama White House and the Supreme Court comes out on Tuesday.  Early reviews are excellent; here are links to a handful.

• Jeffrey Rosen has a thorough and balanced review in the Washington Post.  Rosen calls Toobin "Woodward's successor as the chronicler of behind-the-scenes details from the Supreme Court," and says The Oath "is a page-turner."  Toobin writes that the big scoop in the book is that Chief Justice Roberts's first draft of Citizens United was limited, saying only that the Bipartisan Campaign Reform Act didn't apply to Citizens United's movie critical of Hillary Rodham Clinton (and not that the BCRA was unconstitutional, as the Court eventually ruled).  (Toobin also writes of that other big event involving Chief Justice Roberts: his switch in the ACA case.)
• Terry Gross has a wonderful interview with Toobin on Fresh Air.  The NPR link also has a link to excerpts from the book.
• Kirkus Review calls the book "a skillful probing of the often-discordant relationship between the president and the Supreme Court" and "[s]hrewd and elucidating."
• The Huffington Post review focuses on Chief Justice Roberts's ACA switch.
• Politico's Playbook has a couple excerpts.

SDS

Court Permanently Enjoins NDAA Detention Authority

Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague.  Judge Forrest issued a permanent injunction against its enforcement.

The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case.  The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead.  Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along.  According to Judge Forrest, it didn't.  And still doesn't.  The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself.  Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.

Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 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 Forces 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].

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."

Judge Forrest agreed.  She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority.  Here are some key points from the ruling:

• Standing.  Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment.  Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention.  For Judge Forrest, this wasn't enough.  The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
• AUMF Authority.  Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF.  Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces."  She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021.  (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."  Compare that language to the language of Section 1021(b)(2), above.)
• Alternative Use of AUMF.  Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention.  She wrote,

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

Op. at 14.

• Habeas.  Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court.  She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.

SDS

West Virginia Supreme Court Strikes Public Campaign Finance Law

The Supreme Court of Appeals of West Virginia ruled in State of West Virginia ex rel Loughry v. Tennant that the matching funds provision in the state's public campaign finance law violated the First Amendment.  The ruling follows the Supreme Court's decision in 2011 in Arizona Free Enterprise Club's Freedom PAC v. Bennett striking a similar Arizona law.

West Virginia's law, enacted in 2010, before Arizona Free Enterprise came down, provided a lump-sum initial payment to any participating candidate in a state election for the state Supreme Court of Appeals.  It then provided matching funds for a participating candidate when a privately-financed opposing candidate spent the amount equivalent to the lump-sum payment plus twenty percent.  In short, this meant that a participating candidate would receive matching funds from the state above the initial lump-sum payment whenever his or her privately-funded opponent spent more than the initial lump-sum payment plus twenty percent.  Thus West Virginia's scheme forced the same kind of speech-restricting choice on a non-participating candidate that the Supreme Court said was foisted on a non-participating candidate in Arizona Free Enterprise: spend more (i.e., speak more) and trigger matching funds for your opponent, or don't spend/speak more.

West Virginia's law only applied to judicial candidates for the state Supreme Court of Appeals, though.  This was by design: the legislature was concerned about the reputation of the judiciary in light of the problems that gave rise to Caperton v. A.T. Massey Coal Co., among others.  The petitioner here argued that West Virginia's law was distinguishable from Arizona's for that reason--that judicial elections raise especial concerns that exempt them from the analysis in Arizona Free Enterprise.

The court rejected that argument and ruled that Arizona Free Enterprise applied with full force to all elections,including judicial elections.  It went on to say that the matching fund scheme wasn't narrowly tailored: the state could have adopted a less speech-restrictive means to achieving its interest by simply increasing the amount of the initial lump-sum payment; and the matching fund scheme didn't advance the state's interest in protecting the impartiality and integrity of the judiciary in an election where three of the four candidates were self-financed.

The court allowed the petitioner to keep his initial lump-sum payment, however, saying that there was no constitutional problem with that.

The case means that the petitioner, a participating candidate who sought matching funds by way of mandamus after the state itself concluded that the matching fund scheme was unconstitutional and declined to pay, will not get matching funds for his election.  And because the court ruled the scheme unconstitutional, neither will anybody else.

SDS

Court Orders FEC to Reconsider Ruling on Access to Debates

Judge Rudolph Contreras (D.D.C.) ruled in La Botz v. FEC that the Commission's decision upholding a private organization's standards that kept the plaintiff out of the organization-sponsored U.S. Senate debates in Ohio in 2010 were not supported by substantial evidence.  Judge Contreras sent the case back to the FEC for further consideration.

La Botz, a member of Ohio's Socialist Party, didn't get an invitation to the U.S. Senate debates sponsored by the Ohio News Organization (ONO), a consortium of eight newspapers in Ohio.  He complained to the FEC that the ONO failed to use "pre-established, objective criteria" in determining who got to participate, as required by FEC regs.  The FEC dismissed the complaint with no more than a conclusory sentence of analysis (based on a single, flawed affidavit of an editor of one of the ONO newspapers) concluding that the ONO's standards satisfied FEC regs.  La Botz sued.

Judge Contreras ruled that La Botz had standing, and that the case was not moot (because it was capable of repetition yet evading review).  Then he sent the case back to the FEC for a more complete analysis, supported by substantial evidence.

The ruling means that the FEC will have another crack at it.  But even a ruling for La Botz (obviously) won't have a direct impact on his 2010 Senate run.  At most, it'll tell the ONO what kinds of criteria it needs to adopt the next time around. 

SDS

Judge Bolton Declines Pre-Enforcement Injunction Against Arizona's SB1070's "show your papers" Provision

Judge Susan Bolton, who entered a preliminary injunction against portions of Arizona's controversial SB1070 in July 2010, including the controversial "show me your papers" provision, section 2(b), has issued a new order and opinion in del Sol v. Whiting, refusing to enjoin section 2(b) in light of the Supreme Court's decision in Arizona v. United States last June. 

Recall that the Court held several sections of SB1070 preempted by federal law (thus essentially affirming Judge Bolton's initial decision, as affirmed by the Ninth Circuit), but found that Section 2(b) could be read to avoid the concerns of conflict.  While section 2(b) requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully, the Court provided several instances where 2(b) might be compatible with federal law and thus refused a pre-enforcement injunction.

Thus, on the preemption challenge, Judge Bolton's opinion is squarely within the dictates of Arizona v. United States.

However, the challengers also raised Equal Protection and Fourth Amendment challenges.  Bolton's opinion subsumes these into the preemption challenge based on the Supremacy Clause.  She quotes the Court in Arizona v. US as stating that its "opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” adding emphasis.  Yet it is unclear how the Court's opinion could possibly foreclose the "other constitutional challenges" even pre-enforcement given that the issue before the Court was solely preemption (a limitation Justice Roberts stressed at the start of the oral arguments). 

Bolton's opinion states that she "will not ignore the clear direction in the Arizona opinion that subsection 2(B) cannot be challenged further on its face before the law takes effect," but certainly the Court could not give direction, clear or otherwise, regarding issues that were not before it.

RR
[image via]

The Power of "Dissentals"

A "dissental" is not the mistake of a first year law student, but the increasingly popular term for an opinion dissenting from a rehearing en banc, with its opposing opinion known as a concurral. 

Ninth Circuit Judge Kozinski, himself the author of a fair number of these, has a good discussion of the practice on Yale Law Journal Online (take a look at the pdf of the article for some enlightening charts and statistics).  The Ninth Circuit's practice continues to be spotlighted, including the dissentals and concurrals by Ninth Circuit Judges regarding the rehearing en banc of the panel's divided opinion in United States v. Alvarez on the constitutionality of a provision of the "Stolen Valor" Act.  Recall that the United States Supreme Court ultimately affirmed the Ninth Circuit.

Next month, the Court will hear University of Texas v. Fisher, featuring a dissental from controversial Fifth Circuit Judge Edith Jones, whose opinion outlines the ways in which she believes the panel opinion deviates from Grutter v. Bollinger.

Whether or not "dissentals" contribute to grants of certiorari by the United States Supreme Court is uncertain.  Of course, there is a correlation, but that should be expected if the case is sufficiently important, if statutes are being declared unconstitutional, and if precedent is being cast into doubt. Yet there are certainly a number of counter-examples.

Perhaps more certain is the manner in which "dissentals" or "concurrals" can sharpen the issues.  However, they also risk providing more rhetoric than cogent analysis.

Judge Kozinski also argues that they can also serve to insulate the panel opinion from review, with the "threat" of a dissental prompting a revised panel opinion.

RR
[image via]

Western District of Texas Keeps Court-Drawn Maps in Place for Election

Following an earlier ruling last week by a three-judge panel of the D.C. District denying Section 5 preclearance to Texas legislature's redistricting plans, a Western District of Texas panel ruled on Friday that the most recent court-drawn plans will remain in place for the upcoming elections.

The ruling means that the court-drawn plans will govern the upcoming elections--even though at least one of those plans, the congressional district plan, was based closely on the Texas legislature's original plan that was denied preclearance earlier in the week.

This can all seem confusing, so let's sort it out from the beginning.  The Texas legislature redrew maps for its congressional, state senate, and state house seats in response to its ballooning and shifting population in the 2010 census and to maintain one-person-one-vote in its districts.  But Texas was required to gain preclearance under Section 5 of the VRA before it implemented those plans.  So it sought preclearance from a three-judge panel of the U.S. District Court for the District of Columbia.  (It could have alternatively sought preclearance from DOJ, but it didn't.)

While the Section 5 case was pending, plaintiffs challenged the plans in the United States District Court for the Western District of Texas, alleging that the plans violated Section 2 of the VRA.  The Texas court, recognizing that the Section 5 case was pending but that the D.C. court had not yet ruled, ruled in favor of the plaintiffs and redrew the maps.  Texas appealed to the Supreme Court, and the Court invalidated the maps, in Perry v. Perez.

The Texas court went back to the drawing board and came up with new court-drawn maps, more closely based on the Texas legislature's original maps.  (The original maps were still pending Section 5 preclearance in the D.C. court.)  Nobody challenged the newly redrawn maps by the Western District court--at least not yet.

Earlier last week, the D.C. District finally ruled that the Texas legislature's original redistricting maps did not merit preclearance under Section 5 of the VRA.  The ruling didn't touch the most recent court-drawn maps by the Western District, however.  Those maps seemed to stay in place.  (Texas announced later last week that it would appeal the Section 5 ruling to the Supreme Court.  That announcement doesn't affect the Western District's maps--at least until the Supreme Court rules.)

After the D.C. court ruling last week, the Western District set a status conference for Friday to sort it all out.  According to the order, the court preliminarily assumed that its own most recent maps would govern the 2012 elections, but it offered parties an opportunity to argue otherwise.  Only one plaintiff in the original Section 2 case argued that the most recent court-drawn maps shouldn't govern:  the League of United Latin American Citizens argued that the court's congressional map was invalid, because it was based too closely on the Texas legislature's original congressional map, which failed preclearance earlier in the week.

The Western District rejected that argument and ruled from the bench that its own redrawn maps would govern the 2012 elections.  It also asked the parties for proposals by December 1 on how to move forward.

Unless there are any surprise moves--and they'd have to be a real surprise, and real quick, given the timing--the latest court-drawn plans will govern the upcoming elections.  

Meanwhile, the Texas legislature's plans may go to the Supreme Court.  But even if they do, the application of Section 5 will hardly be the most interesting issue related to the VRA before the Court.  That's because the Court is almost certain to grant cert. to a challenge to the constitutionality of Section 5.  If so, and if the Court, as expected, overturns Section 5, the Texas legislature's original plans may go back into place--but only after the 2012 elections.

SDS

Eighth Circuit Says False Conveyance of Bomb Threat is Not Protected Speech

A three-judge panel of the Eighth Circuit ruled yesterday in US v. Williams that a person's false conveyance of a bomb threat on an airplane is not protected speech.  The ruling upholds two federal statutes criminalizing the false conveyance of bomb threats and affirms the defendant's conviction.

Defendant Williams was convicted under two federal statutes.  The first, 18 U.S.C. Sec. 35(b), says,

Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys or causes to be imparted or conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this chapter or chapter 97 or chapter 111 of this title--shall be fined under this title, or imprisoned not more than five years, or both.

The other, 18 U.S.C. Sec. 844(e), says,

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

Williams argued that the statutes were invalid content-based restrictions on speech, not falling within one of the categorical exceptions, and were overbroad.

The court disagreed.  The court ruled that the statutes were "true threats," a categorical exception to the general ban on content-based restrictions on speech.  The court rejected Williams's claim that he had no subjective intent to threaten when he made the statement--and that therefore the statement couldn't have been a true threat--saying that its 2011 case U.S. v. Mabie held that true threats did not need such a subject intent; instead, under Mabie, the court uses an objective test for determining whether a communication is a true threat, considering the entire context of the statement.

The court also rejected Williams's argument that the statutes were overbroad.  The court said that the narrowing elements of the statutes--the requisite mental states, "willfully," "maliciously"--"narrow the field as far as those who may potentially fall within their reach."  Op. at 7.

The court recognized that "[t]here is no general exception to the First Amendment for false statements," citing the Supreme Court's recent ruling in United States v. Alvarez.  But here, according to the court, the statutes fall within a categorical exception to the regular content-based rules, they pose no threat of criminalizing speech broader statements, they do not chill otherwise valuable speech, and they only criminalize speech that is likely to cause harm.

SDS

Another Catholic School Challenge to Women's Health Regs Dismissed

Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.

The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District.  We posted on the earlier case, Belmont Abbey College v. Sebelius, here.  This case, by a different judge, now makes it even less likely that any of these suits will succeed.

(There are two other district court rulings.  In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs.  In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor.  Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)

The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness.  Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.

Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative.  She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans.  Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice."  Op. at 11.

SDS

Eleventh Circuit: Settlement Offer Without Judgment Does Not Moot Case

The Eleventh Circuit ruled in Zinni v. ER Solutions, Inc. that the defendants' settlement offer for the full amount available under federal law, but not including an offer of a judgment, did not moot the plaintiffs' Fair Debt Collection Practices Act case.

The plaintiffs sued defendants in federal court for harassing debt collection calls in violation of the FDCPA and sought monetary damages and a judgment against the defendants.  The defendants offered $1,001 to each plaintiff--one dollar more than the maximum damage award under the FDCPA--plus unspecified attorneys' fees and costs.  But they didn't offer a judgment against them.

The Eleventh Circuit ruled that the offer didn't moot the plaintiffs' case.  The court said that the defendants' offer wasn't the full relief requested by the plaintiffs (because the plaintiffs also asked for a judgment), and that a settlement for monetary damages without a judgment could simply lead to more litigation--for state law breach-of-contract--while at the same time divesting the federal court of jurisdiction over the claim.  In other words: If the court dismissed the case as moot, the plaintiffs had only the defendants' promise to pay, and no means of enforcement in the federal courts.  (With no judgment, the federal court where the plaintiffs brought the case would lack jurisdiction to enforcement a settlement.  The plaintiffs could only enforce it in state court, on a breach-of-contract claim.)

The court distinguished two Seventh Circuit cases that held that an offer of full settlement did moot the claims, because the offer in those cases included a court-enforceable judgment.

The ruling allows the case to move forward, presumably on the issue of the judgment alone (assuming that the plaintiffs accept the offer of monetary damages).

SDS

D.C. Circuit Rules FDA Cigarette Labels Unconstitutional

A sharply divided three-judge panel of the D.C. Circuit ruled in R.J. Reynolds Tobacco Co. v. FDA that the FDA's new regulations requiring textual warnings and graphic pictures depicting the negative health consequences of smoking violate the First Amendment.  The ruling affirms an earlier ruling by Judge Richard Leon (D.D.C.), but applying a different level of scrutiny.

The panel split, together with the several different opinions (including Judge Leon's) as to the appropriate level of scrutiny, make this case a likely candidate for en banc review and, ultimately, Supreme Court review.  The case offers a good opportunity to clarify the level of scrutiny for compelled speech that seems both commercial and non-commercial in different ways.  In determining the standard, this case also offers a good opportunity to decide how to interpret Zauderer's correction-of-misleading-speech: Does Zauderer's rational basis review apply only when the government compels speech to correct currently misleading speech (as the majority says); or does it also apply when the government compels speech to correct historically misleading speech (as the dissent argues)?  Finally, the case also offers a good opportunity to apply a level of scrutiny, where the compelled speech--including graphic pictures--is designed to inform consumers of the dangers of smoking and to reduce smoking.

 

Those questions were front and center for the D.C. Circuit.  Judge Brown wrote the opinion, ruling that the Central Hudson intermediate scrutiny test was the appropriate standard.  (The court thus rejected the Zauderer rational basis test, for largely the same reasons that Judge Leon rejected that test: because FDA's pictures were not designed to correct the same kind of misleading speech at issue in Zauderer and its progeny.  But the court also rejected strict scrutiny (Judge Leon's test), saying that circuit law required application of Central Hudson's intermediate standard.)

Judge Brown wrote that the FDA's compelled textual warnings and graphic pictures were simply not sufficiently tailored under Central Hudson to meet its two interests--even if those interests were substantial.  As to the FDA's interest in reducing smoking, the court ruled that the FDA failed to produce any evidence showing that pictures like this would cause smokers to quit and persuade non-smokers not to start.  As to the FDA's interest in "effectively" informing consumers of the harms of smoking, the court said that this was too vague an interest and would allow the FDA itself to define "effectively," ultimately "render[ing] Central Hudson's 'substantial interest' requirement a complete nullity" and "eviscerat[ing] the requirement that any restriction 'directly advance' that interest."  Op. at 29.  

Judge Rogers dissented, arguing that the court didn't take sufficient account of the government's informational interest and that the compelled speech, with the exception of the inclusion of the toll-free number "1-800-QUIT-NOW," satisfied either Zauderer's rational basis review or Central Hudson's intermediate scrutiny.  (Judge Rogers argued first that the compelled speech was accurate and designed to correct the tobacco companies' "decades-long campaign to deceive consumers" and thus fell squarely within Zauderer.  Judge Brown rejected this approach, looking only to whether the tobacco companies' here-and-now statements were misleading.)  Judge Rogers wrote that the FDA had amassed volumes of evidence showing that its warnings and pictures would best get consumers' attention and inform them of the dangers of smoking.

SDS

ICE Officers Sue to Halt DHS Deferred Action

A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens.  (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.)  The administration has argued that the program is a valid exercise of prosecutorial discretion.  We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).

It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government.  The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution.  It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them.  There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations. 

The officers state five causes of action.  First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted."  Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law.  Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'"  Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress.  Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.

Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future.  But maybe it's not supposed to.  The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.

SDS

Probationer Lacks Standing to Sue Alcohol Testing Company

The Eighth Circuit ruled today in Miller v. Redwood Toxicology Laboratory, Inc. that a probationer, Miller, who was wrongly determined to have consumed alcohol in violation of his probation lacked standing to sue an alcohol testing company under a state false advertising law.

The case arose out of Miller's suit against Redwood Toxicology after Redwood submitted alcohol test results that indicated that Miller consumed alcohol in violation of his probation terms.  Based on the results, Miller was taken into custody--for four-and-a-half months.  But the judge at the contested probation violation hearing ruled that the state failed to meet its burden--in part because Miller had "significant incidental exposure" to alcohol that led to the result--and ordered his release. 

Miller sued Redwood under the Minnesota False Statement in Advertising Act and common law negligence, arguing, among other things, that Redwood's test results led to his erroneous probation report, detention, lost income and work, lost liberty, and emotional harm. 

The Eighth Circuit ruled that Miller lacked standing on the False Statement claim, because he didn't sufficiently allege causation.  The court explained:

Indeed, Redwood did not file a probation violation against Miller.  It was the State that filed the probation violation and incarcerated Miller.  Too, it was the State that chose the particular test, ultimately established and implemented the cut-off levels for the probationers it tested, and interpreted the test results provided by Redwood accordingly.  The amended complaint does not and cannot allege a causal connection between Redwood's actions and any presumed injury suffered by Miller sufficient for purposes of Article III.

Op. at 9.  This holds, said the court, even though the state supreme court has said that a strict showing of causation is not required in a damages claim under the law.  Whatever the state supreme court says about standing in the state's own courts, it cannot override Article III requirements for cases in federal court.

In contrast, the court ruled that Miller did have standing on his common law claims--based on Redwood's failure to warn him of its known false positive rate when it gave Miller the results.  The court nevertheless dismissed these claims, too, though, saying that Miller failed to allege that Redwood violated its duty of care.

SDS

Seventh Circuit: No Qualified Immunity Against Age Discrimination Claim Under Equal Protection

A three-judge panel of the Seventh Circuit ruled last week in Levin v. Madigan that individual defendants were not entitled to qualified immunity against a plaintiff's equal protection claim.

As part of the ruling, the panel also held that the Age Discrimination in Employment Act, or ADEA, did not preclude the plaintiff's Section 1983 claim based on the Equal Protection Clause.  This holding puts the Seventh Circuit at odds with every other circuit that's ruled on the question, creating a split.  (District courts outside those circuits are themselves split.)  Because of this, the panel circulated the opinion to all the judges on the Circuit; none voted for a rehearing en banc.  This case looks like a good candidate for Supreme Court review.

Unless and until the case goes up, the Seventh Circuit's ruling means that the plaintiff's Section 1983 case against the individual defendants can move forward.  The ruling says nothing about the merits.

The case arose out of a former assistant attorney general's suit against the Illinois attorney general, in both her official and individual capacities, and the state for firing him and replacing him with a younger attorney.  The plaintiff sued for age discrimination under the ADEA and Section 1983 (under the Equal Protection Clause).  The AG appealed the district court's denial of qualified immunity in her individual capacity.

The Seventh Circuit ruled that the ADEA did not displace the plaintiff's Section 1983 claim for violation of the Equal Protection Clause because (1) the ADEA's text and legislative history didn't expressly preclude a Section 1983 claim based on a constitutional violation and (2) the ADEA's rights and protections didn't line up with the rights and protections under Section 1983.

This portion of the opinion is at odds with every other circuit court to rule on the question.

The court went on to deny qualified immunity, because it was clearly established that age discrimination in employment violated the Equal Protection Clause, so long as the discrimination wasn't rationally related to a legitimate government interest.

SDS

D.C. Circuit: No Standing to Challenge EPA Fuel Regs

A sharply divided three-judge panel of the D.C. Circuit ruled on Friday in Grocery Manufacturers Ass'n v. EPA that three trade associations lacked standing to challenge EPA's "partial" waivers allowing the introduction of a new ethanol biofuel.

The ruling means that EPA's waivers stand, allowing the introduction of an unleaded gasoline blend containing 15 percent ethanol for use in model-year 2001 and newer light-duty motor vehicles and engines.  The case also deepens a circuit split on the question whether prudential standing is jurisdictional (and therefore reviewable even if a party doesn't challenge it).  The panel majority said yes--a holding that seems in tension with the direction of both the Supreme Court and the circuit itself. 

Between these two issues--the underlying issue of EPA's authority to issue waivers for a new biofuel, and the issue whether prudential standing is jurisdictional--this case may make a good candidate for Supreme Court review.

The case arose out EPA's "partial" waivers of the Clean Air Act provision that prohibits manufacturers from introducing into commerce "any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive" used in the federal emissions certification of those vehicles.  42 U.S.C. Sec. 7545(f)(1)(B).  The CAA allows the EPA to grant a waiver, however, if it "determines that the applicant has established that such fuel or fuel additive or a specific concentration thereof, and the emission products of such fuel or fuel additive or specified concentration thereof, will not cause or contribute to a failure of any emission control device or system . . . to achieve compliance by the vehicle or engine with the emission standards with respect to which it has been certified."  42 U.S.C. Sec. 7545(f)(4) (emphasis added).

The waivers allowed manufacturers to introduce a new biofuel, E15 (an unleaded gasoline blend containing 15 percent ethanol), for light-duty motor vehicles and engines with a model year 2001 and newer.  (E10, a different ethanol blend with just 10 percent ethanol, is already on the market.  Put simply: E15 uses more corn.)

The plaintiffs, three different trade associations, sued, arguing, among other things, that EPA lacked authority to grant a "partial" waiver.  (See (f)(4), above, and the phrase "any emission control device or system.")  An intervenor argued that the plaintiffs lacked standing.

(Note that the government challenged neither Article III standing nor prudential standing.  Under well settled law, the court can still address Article III standing, because it's jurisdictional.  But the panel split on whether the court could address prudential standing: the majority wrote that it could (because it's jurisdictional); the dissent wrote that it could not (because it's not jurisdictional).  (Judge Tatel wrote that circuit precedent required the court to rule that it's jurisdictional, even though the weight of authority seems to be going the other way.)

Chief Judge Sentelle and Judge Tatel agreed that two of the three trade associations lacked Article III standing, because their claimed harms were too far removed from the EPA's partial waivers.  (The engine-products group claimed that EPA waivers would cause E15 to enter the market and cause damage to certain engines and create liability for those engine manufacturers.  The court held that this was neither "concrete and particularized" nor "actual or imminent."  The petroleum group claimed that the waivers would require refiners and importers to introduce E15 into commerce (because there'd be no other way to meet increasing renewable fuel requirements under federal law) and downstream firms to accommodate E15.  The court said that the waivers caused neither of these results.)

They also agreed that the third plaintiff, the food producers, lacked prudential standing, because their interests weren't within the zone of interests to be protected or regulated by the statute.  They said that the food producers, which argued that the waiver would cause corn prices to rise, drew on an interest protected by a different statute, not the CAA.

Judge Kavanaugh argued in dissent that both the food producers and the petroleum group had Article III standing, that prudential standing was non-jurisdictional, and that even if prudential standing were jurisdictional both had it. 

(Judge Tatel agreed that the food producers had Article III standing, but because Judge Tatel also agreed with Chief Judge Sentelle that they lacked prudential standing, the case is dismissed.)

Judge Kavanaugh went on to argue that the EPA lacked authority to grant the partial waivers.

SDS