Wednesday, May 21, 2014

Government to Reveal Targeted Killing Authority

The Justice Department will release a memo that makes the case that its drone attacks are legal.  The move comes in the wake of a Second Circuit ruling last month ordering the release of a redacted version of the memo, and amid calls in the Senate for the memo's release as that body considers the nomination of David Barron, one of the authors, to a federal appeals court.

Recall that the Department previously leaked a white paper outlining the government's case.  We posted most recently on the legal challenges here.

The Washington Post reports here.

May 21, 2014 in Executive Authority, News, War Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, May 15, 2014

Rethinking War Powers

Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force.  The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda.  Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.

At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally.  They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking  members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict."  The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas.  The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force.  (The Senate has taken no action on the measure.)

According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ."  According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:

Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.

May 15, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Second Circuit Orders Release of Administration's Justification for Targeted Killing

The Second Circuit ruled earlier this week that the government must release a redacted version of an Office of Legal Counsel memo outlining the government's legal authority to conduct targeted killings.  The case, New York Times v. Department of Justice, is a FOIA case seeking the OLC memo, and not a legal challenge to the targeted killing program itself.  The court said that the government had released so much information about its legal justification--including the white paper that the government leaked to the media last year--that the government couldn't really claim that the legal justification was still secret.

We posted on the white paper here, with links to earlier posts (and to the white paper itself), and most recently on legal challenges to the targeted killing program here.

April 24, 2014 in Cases and Case Materials, Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Court to Rule on Separation of Powers in Foreign Affairs

The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits.  The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem.  Our latest post on the case, with links to earlier posts, is here.

The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel." 

The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question.  On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations. 

In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.

April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Friday, April 11, 2014

No Invalid Delegation in Sex Offender Registration Act

The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.

The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.

Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006.  Congress passed SORNA in July 2006.  Cooper was charged with failing to register in 2012.

Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation.  SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."

Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S.  That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them.  Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable."  We posted on the case and Justice Scalia's concern here.

But the Third Circuit rejected Cooper's claim.  The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:

In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority.  This is all that is required under the modern nondelegation jurisprudence.

The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."

April 11, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

D.C. Circuit Appears Split in Latest Obamacare Challenge

A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange.  We posted on those cases here.  In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange.  This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy.  So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).

That rule is what's at issue in these cases.  The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges).  Jason Millman over at the WaPo's Wonkblog explains the significance:

The subsidy question is central to the future survival of the law.  Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.

About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage.  Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage.  That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."

The D.C. Circuit is the first appellate court to hear arguments in these challenges.  Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote.  The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.

March 28, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Feinstein Rails Against CIA Search of Committee Computers

Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things. 

The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies.  (CIA Director John Brennan denied this.)  The CIA Inspector General referred the matter to the Justice Department.

In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material.  Senator Feinstein said that this move was designed to intimidate the Committee. 

As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material.  The NYT has a good back-grounder here

March 11, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

FISC Rejects Government Motion to Keep Telephony Records More Than Five Years

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring  "telephony metadata produced in response to the Court’s orders be destroyed within five years."  The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”

In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence.  The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than five years old," was, the judge stated, "far-fetched."  The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modified amendment to the existing minimization procedures."

Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.

Telephone_Line_Time_is_Precious_Art.IWMPST4037

A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.

And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.

And an even more nefarious interpretation?   There are sure to be more speculations.

[image via]

March 7, 2014 in Cases and Case Materials, Executive Authority, Fourth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.

The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).

The ruling is likely to bring  a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement.  It may also bring a congressional response--to foreclose those claims.

The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.

Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims.  The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:

No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).

The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:

Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).

The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.

In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims).  It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims.  And it said that Boumediene struck Section 2241(e)(1). 

So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.

The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed).  The court said that the Supreme Court left this question open, and that there is a split among the circuits.  Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:

The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention."  Munaf v. Geren.  The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention.  In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.

Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.

The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.

Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).

The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims.  The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest.  The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA. 

The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.

February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.

The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act).  The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues.  The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."

The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.

Daywefightback

While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments.  Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.

February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Aftermath of Windsor in the Federal Government: AG Holder's Memo

Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible."  Holder discussed the forthcoming memo in a speech delivered the previous weekend.

Memo DOJ

In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law."  This shifts the marriage validity question away from domicile or residence. 

Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."

Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.

One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges.  Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).

February 11, 2014 in Current Affairs, Executive Authority, Family, Fundamental Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Daily Read: The Intercept on the NSA and Targeted Killing

A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today.  It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.

Intercept

Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."

The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program.  It ends by implicating President Obama:

Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.

And Obama may even think it's one a "strong suit" of his.

This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.

February 10, 2014 in Congressional Authority, Executive Authority, Foreign Affairs, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Is RFRA Unconstitutional?

RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and  Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners.  RFRA, 42 USC § 2000bb–1, provides that

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

™(1) is in furtherance of a compelling governmental interest; and
™(2) is the least restrictive means of furthering that compelling governmental interest.

Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment.  RFRA's findings explicitly state that :

(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.

The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores.  Thus, RFRA cannot constitutionally be applied to state laws. 

So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but"  quickly added.  But RFRA still applies to the federal government.  Or so we assume?

That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton.  Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government.  The brief argues that the "plain language" of the statute

establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.

Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional

has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States.  That may seem highly unlikely, but stranger things have happened.

 

January 30, 2014 in Executive Authority, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Can President Obama Increase the Minimum Wage for Government Contractors?

President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour.  He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.

Can he do this?

Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution.  But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch.  In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.

Republicans who have criticized the action point to the federal statutory minimum wage.  They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors.  Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ."  FLSA Section 206.  

But the FLSA sets a floor.  Nothing in the FLSA prevents an employer from paying more than the minimum.  And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum. 

Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action.  The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector.  The Act thus gives the President a great deal of authority to prescribe policies related to government procurement.  For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ."  40 U.S.C. Sec. 121.

The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy.  The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work.  Indeed, there's a long line of similar requirements imposed by Presidents.

The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority.  The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.

Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage.  And that's not even considering any inherent Article II authority the President may have over government contractors.

That's not to say that Congress doesn't have a check.  If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage.  (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.)  But current law doesn't seem to do that.

For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.

January 28, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, January 26, 2014

Daily Read: Marjorie Cohn on the NSA Decisions and the Constitutionality of Surveillance

Over at Jurist, LawProf Marjorie Cohn (pictured below) intervenes in the constitutional conundrum caused by NSA metadata surveillance.

CohnRecall that 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.  

Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland.  But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.

Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."

But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.

Unless, of course, President Obama acts quickly to revise the program.

 

January 26, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Fourth Amendment, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 19, 2014

Does Obama's Ban on Lobbyists in Advisory Slots Violate Free Speech?

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees.  The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment.  The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.

Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974.  There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry.  As a result, ITAC members include representatives from major corporations. 

But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington.  In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees."  This meant that the appellants couldn't serve on ITACs.  Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.

The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed.  The court remanded the case for a determination of the First Amendment question.

The court distinguished Minnesota State Board for Community Colleges v. Knight.  In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment.  Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."

The court instead drew on the government-employee speech doctrine.  It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights.  In other words, the ban might violate the unconstitutional conditions doctrine. 

The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State."  The court wrote,

In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not).  The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."

January 19, 2014 in Cases and Case Materials, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.

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Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Obama's Speech and Directive on NSA Surveillance

In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities,"  regarding NSA Surveillance.   Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - 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 - - - and that the national discussion on this issue is largely attributable to Edward Snowden.

While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:

Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

As for Obama's specific reforms, critics might also argue that they are more "heat than light."  Importantly, Obama did pay more attention to "foreign" persons.  He also broadly stated:
 
In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

But the details, as usual, can be a bit more perplexing.  For example, consider this qualification to "competitive advantage" :

Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive.  Afterwards, it tweeted the results of its assessment of Obama's performance:

EFF scorecard

 

January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Obamacare Tax Credit Survives Lawsuit

Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare.  The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts.  We wrote on some of those cases and issues most recently herePolitico reports on this case here.

The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges.  That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.

In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ."  (Emphasis added.)  But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.

A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange). 

You might wonder about standing, given that the rule is designed to make insurance cheaper.  The court said at least one plaintiff had standing.  That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan.  That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption.  But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption.  As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance).  Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing.  The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State."  That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so.  When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State."  "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act. 

January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)