Wednesday, January 9, 2013
Writing about recent developments in the case of Bradley Manning (pictured), New Yorker commentator Amy Davidson considers how the charge of aiding the enemy by releasing information to the press has precedent in a Civil War prosecution - - - and how the possible sentence now is dramatically different.
Tuesday, December 4, 2012
A unanimous Supreme Court (with Justice Kagan recused) ruled today in Arkansas Game & Fish Commission v. U.S. that government temporary flooding may constitute a taking. The ruling is not particularly surprising and only reversed and remanded a lower court decision that read precedent to give temporary floods a pass under the Takings Clause. Justice Ginsburg wrote for the Court that temporary floods get no such pass and may well constitute a taking, depending on a number of well-settled factors.
We covered the oral argument here.
The case arose out of the Army Corps of Engineer's varying water release rates from the Clearwater Dam, upstream from the Commission's Management Area. The release rates caused a series of temporary floods in the Management Area during key tree-growing season, thus harming certain tree species and the wildlife that they supported. The Commission sued, arguing that the floods constituted a taking. The Federal Circuit read Supreme Court precedent to say that temporary floods (as opposed to permanent ones) were categorically exempt from the Takings Clause.
The Supreme Court reversed. Justice Ginsburg wrote that the Federal Circuit misread Court precedent and that even temporary floods could constitute a taking. How do we know when?
When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. . . .
Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use. . . . Severity of the interference figures in the calculus as well.
Op at 14-15.
The Court sent the case back to the Federal Circuit to take a crack at applying these factors.
Thursday, November 29, 2012
Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act
Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009?
The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act. In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:
Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute. But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?
On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers. They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly, because the statute does not make a racial classification.
This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.
Wednesday, November 21, 2012
Just when it seems as if the "takings clause revolution" is over, it re-emerges. This time, the property is not a "little pink house," but raisins.
The United States Supreme Court has granted certiorari in Horne v. USDA. As we discussed last year, the Ninth Circuit upheld the constitutionality of a USDA regulatory scheme regarding raisins against a takings clause challenge. The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices. The Hornes argued that "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."
Thursday, October 18, 2012
In a divided opinion issued today, the Second Circuit in Windsor v. United States, affirmed the district judge's conclusion that the defense of Marriage Act (DOMA) section 3 is unconstitutional. Recall that the United States position is being defended by BLAG, Bipartisan Leadership Advisory Group, reportedly at a cost to taxpayers of 1.5 million dollars.
Second Circuit Chief Judge Dennis Jacobs wrote the majority opinion that Judge Droney joined. The panel held that Windsor had standing, that the suit was not foreclosed by the Court's 1971 summary dismissal in Baker v. Nelson, that DOMA was subject to intermediate scrutiny and that DOMA failed intermediate scrutiny, as well as that there was no need to certify any questions to New York's highest court.
The Second Circuit rejected the district judge's finding that the appropriate level of scrutiny was rational basis, holding that intermediate scrutiny is correct under the basic Carolene Products factors as articulated in Cleburne. The panel stated:
In this case, all four factors justify heightened scrutiny:
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The panel then applied the classic articulation of intermediate scrutiny, requiring that the "classification must be substantially related to an important government interest." The panel analyzed BLAG's stated interests - - -the “unique federal interests ” (which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution”) and the encouragement of “responsible procreation” - - - noting that at oral argument "BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." The panel, however, does evaluate the interests, concluding they are not being substantially served by DOMA.
Dissenting Judge Straub, in a lengthy opinion, contends that DOMA merits only rational basis scrutiny and that it satisfies this low standard.
October 18, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Fifth Amendment, Gender, News, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Friday, August 17, 2012
Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators
In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.
In a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry." Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.
Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses. The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.
This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program. DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.
As the educational affirmative action case of Fisher goes to the United States Supreme Court, DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context.
Tuesday, July 31, 2012
In what is becoming a common occurence, a federal judge held section 3 of DOMA unconstitutional.
Today's opinion in Pedersen v. Office of Personnel Management, with BLAG (Bipartisan Legal Advisory Group of the House of Representatives) intervening to defend the law, is by Judge Vanessa Bryant of the United States District Court for the District of Connecticut.
Judge Bryant's thorough opinion, over 100 pages, treads by now familiar ground. Judge Bryant first rehearses the history ofthe Defense of Marriage Act (DOMA), standing, and the (in)applicability of the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972).
In applying Equal Protection doctrine to a classification based upon sexual orientation, the first task is to determine the level of scrutiny to be applied to sexual minorities. As Professor Julie Nice writes over at Jurist, this can put a court in a "dither" given the Supreme Court's "miminalism" on this issue.
But Judge Bryant attempted to be clear, both in her theoretical perspectives and doctrine. She first stated she "must not be tempted to tie conceptions of judicial restraint to historic notions of equality," but instead engage in a "rigorous examination of the fundamental meaning of the noble ideals established by our founding fathers as our guiding and enduring principles." (Opinion at 34-35). She then extensively applies the four common factors to determine whether a particular classification should be considered either a suspect or quasi-suspect class:
- (1) the history of invidious discrimination against the class burdened by the legislation;
- (2) whether the characteristics that distinguish the class indicate a typical class member's ability to contribute to society;
- (3) whether the distinguishing characteristics are ‘immutable’ or beyond the class members' control; and
- (4) the political power of the subject class.
Judge Bryant's opinion is especially worth reading on the "political powerlessness" prong in light of arguments regarding President Obama's opinions on sexual orientation. Having considered all four factors, the judge found that " homosexuals display all the traditional indicia of suspectness and therefore statutory classifications based on sexual orientation are entitled to a heightened form of judicial scrutiny." She then quickly defaulted to another rationale: "However, the Court need not apply a form of heightened scrutiny in the instant case to conclude that DOMA violates the promise of the equal protection as it is clear that DOMA fails to pass constitutional muster under even the most deferential level of judicial scrutiny."
Thus, Judge Bryant applied rational basis scrutiny requiring a "legitimate interest" that is reasonably served by the statute. The legislative history of DOMA advanced four interests for the statute: "(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce governmental resources." In litigation, BLAG asserted five: 1) To employ caution in the face of a proposed redefinition of the centuries-old definition of marriage; 2) To protect the public fisc; 3) To maintain consistency and uniformity with regard to eligibility for federal benefits; 4) To avoid creating a social understanding of bearing, begetting, and rearing children separate from marriage; and 5) To recognize an institution designed to ensure that children have parents of both sexes. One by one, Judge Bryant considered the interests and their rational relationship to the statute, concluded that not one of them was sufficient.
Judge Bryant considers judicial review and the role of courts in a democracy at several points, and concludes:
"In sum, having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision. The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution."
Certainly this opinion will be appealed, as have the others, including three pending petitions in the United States Supreme Court. But with yet another federal judge finding DOMA unconstitutional, it would make a Supreme Court decision to the contrary look more and more problematical.
Wednesday, July 18, 2012
The ACLU and the Center for Constitutional Rights filed suit in the D.C. District on behalf of relatives of victims of the government's targeted killing program. The plaintiffs, parents of Samir Khan and Anwar al-Aulaqi and grandfather of Abdulrahman al-Aulaqi (Anwar's son), seek money damages against high-level government officials for authorizing targeted killings in violations of the Fourth and Fifth Amendments and the Bill of Attainder Clause.
The case comes 19 months after Judge Bates (D.D.C.) dismissed an earlier suit by Anwar al-Aulaqi's father, seeking to stop the government from killing his son in the first place. Judge Bates ruled that al-Aulaqi's father lacked standing and failed to allege a violation of the Alien Tort Statute, and that the case raised non-justiciable political questions. (Judge Bates didn't rule on the government's state secrets claim.)
The case also comes on the heels of a couple of dismissed torture suits against high-level officials--Doe v. Rumsfeld (rejected because special factors counseled against a Bivens remedy) and Lebron v. Rumsfeld (same, and cert. denied).
All this is to say that the case faces some hurdles--political question, state secrets, Bivens special factors, and qualified immunity, to name a few.
The plaintiffs in the most recent case argue that the targeted killing were illegal under the laws of war, because the plaintiffs were not engaged in activities that presented a concrete, specific, and imminent threat of death of serious physical injury; because something short of lethal force could have been used to neutralize any threat that they posed; because they were not directly participating in hostilities; because the government failed to take steps to avoid harm to bystanders; and because the killings didn't meet the requirements of distinction and proportionality.
We covered the government's likely justification for targeted killing here, here, here, and here (among other places, linked in these posts). We still don't have a complete legal justification from the government for the targeted killing program.
July 18, 2012 in Cases and Case Materials, Due Process (Substantive), Fifth Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Political Question Doctrine, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 6, 2012
A sharply divided three-judge panel of the D.C. Circuit ruled last week in Davis v. Billington that a Library of Congress employee did not have a Bivens claim against his supervisor and the Librarian of Congress for firing him for his speech. The court ruled that special factors counselled against extending Bivens, because Congress did "not inadvertently" omit damage remedies for employees in the plaintiff's position--employees of the Library of Congress, not the executive branch--in the comprehensive Civil Service Reform Act.
The case arose after Morris Davis, the Congressional Research Service Assistant Director of the Foreign Affairs, Defense, and Trade Division, penned some high-profile opinion pieces critical of the Obama administration for choosing to prosecute some Guantanamo detainees in federal courts and others in military commissions. Davis was also critical of the Bush administration handling of Guantanamo detainees.
Davis had some unique familiarity with these issues. He served as Chief Prosecutor of the military commissions at Guantanamo Bay until October 2007.
After the pieces came out, Daniel Mulhollen, Davis's supervisor, fired him. Davis sued Mulhollen and Billington, the Librarian of Congress, seeking declaratory and injunctive relief, and for damages against Mulhollan for violation of his First and Fifth Amendment rights under Bivens.
The court ruled that special factors counselled against extending a Bivens remedy, because Congress, through the comprehensive remedial scheme in the CSRA, did "not inadvertently" omit damage remedies for civil service members, like Davis, outside the executive branch.
Judge Rogers filed a lengthy and sharp dissent. She said that Congress omitted civil service members outside the executive branch from the CSRA remedial scheme based on separation-of-powers principles. That is, the legislative history of the CSRA shows that Congress didn't include legislative branch employees in the CSRA comprehensive remedial scheme because it didn't want the executive branch to have the power to adjudicate claims of legislative branch employees. The history shows, moreover, that Congress didn't have that same concern with respect to judicial adjudication. According to Judge Rogers, this all shows that Congress did not omit legislative branch employees becauase it wanted to leave them without a remedy. On the contrary, Congress seems to have left open the possibility of a judicial remedy--a Bivens action.
June 6, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fifth Amendment, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Thursday, May 31, 2012
Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation. The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.
Section 207 requires the Federal Railroad Administration and Amtrak to jointly develop standards to evaluate the performance of Amtrak's intercity passenger trains. It says:
[T]he Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including . . . on-time performance and minutes of delay . . . .
Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier. (Amtrak leases the rail lines that it uses from freight rail carriers.)
The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants. The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.
The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance. But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim. Here's what he wrote:
The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed. Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine. The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees. In addition, Amtrak is required to submit annual reports to Congress and the President.
Op. at 11-12. Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.
As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).
While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .
Conditioning regulation on a private party's assent . . . is not constitutionally problematic. Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.
Op. at 18-19.
Thursday, February 23, 2012
This time, the opinion comes from federal District Judge Jeffrey White in Golinski v. United States Office of Personnel Management. Golinski is a staff attorney with the Ninth Circuit and in 2009 Chief Judge Kozinski ordered that Golinski's health benefits form listing her same-sex partner as wife be submitted by federal personnel authorities. The DOJ since decided not to defend the constitutionality of DOMA and such actions are being defended by BLAG - - - the Bipartisan Legal Advisory Group of the United States House of
Golinski, a federal employee and described by the court as "a lesbian woman married under California law, who is unable to secure federal health benefits for her same-sex spouse," challenged Section 3 of DOMA as a violation of equal protection and due process under the Due Process Clause of the Fifth Amendment. Under equal protection doctrine, the court looked at the "various factors" to determine the level of scrutiny the sexual orientation classification merited:
- the history of invidious discrimination against the class burdened by the legislation;
- whether the characteristics that distinguish the class indicate a typical class member’s ability to contribute to society;
- whether the distinguishing characteristics are “immutable” or beyond the class members’ control;
- the political power of the subject class
After finding that there was no definitive precedent regarding the level of scrutiny that should apply, and applying the factors, the judge specifically held "that gay men and lesbians are a group deserving of heightened protection against the prejudices and power of an often-antagonistic majority."
In applying the heightened scrutiny standard, the judge considered the animus expressed by certain members of Congress in DOMA's legislative history, the judge then analyzed the government's stated interests: responsible procreation and child-rearing; nurturing the institution of traditional, opposite-sex marriage; defending traditional notions of morality; and preserving scarce government resources. For each interest, the judge concluded that that it did not "provide a justification that is substantially related to an important governmental objective."
The opinion then engaged in an "alternative analysis" under rational basis review - - - and also applied this to the BLAG's proffered additional hypothetical rational bases for passing DOMA:
- Congressional caution in defining a legislative term and maintaining the status quo
- Congressional caution in area of social divisiveness
- Any other possible basis
With many references to Judge Tauro's 2010 opinions holding DOMA unconstitutional, Judge White similarly decided that these post-DOMA rationales do not satisfy rational basis.
Judge White's conclusion considers the broader issues, including separation of powers and judicial review, in context:
The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:
Prejudice, we are beginning to understand, rises not from malice or hostile
animus alone. It may result as well from insensitivity caused by simple want of
careful, rational reflection or from some instinctive mechanism to guard against
people who appear to be different in some respects from ourselves.
Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy,
This case was presented by an employee of the judicial branch against the executive
branch, which ultimately determined it could not legitimately support the law. The law was
then defended by the legislative branch. The judicial branch is tasked with determining whether this federal law is unconstitutional. That is the courts’ authority and responsibility. “It is emphatically the province and duty of the judicial department to say what the law is” and,where it is so, to declare legislation unconstitutional. See Marbury v. Madison, 1 Cranch 137, 177 (1803). As Supreme Court Chief Justice John G. Roberts said during his confirmation hearings: “Judges are like umpires. Umpires don’t make the rules, they apply them. ... it’s [the judge’s] job to call balls and strikes, and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr.,
In this matter, the Court finds that DOMA, as applied to Ms. Golinski, violates her right
to equal protection of the law under the Fifth Amendment to the United States Constitution by, without substantial justification or rational basis, refusing to recognize her lawful marriage to prevent provision of health insurance coverage to her spouse.
Apart from the substance, Judge White's opinion is a model of organizational clarity. For ConLawProfs looking for excellent opinions that demonstrate the organizational structure of equal protection doctrine, including alternative arguments, this is an opinion worth considering.
February 23, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fifth Amendment, Gender, Opinion Analysis, Separation of Powers, Sexual Orientation, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, February 21, 2012
The D.C. Circuit ruled today in Al-Zahrani and Al-Salami v. Rodriguez that the Military Commissions Act revoked federal court jurisdiction over Guantanamo alien detainees' damages claims for constitutional torts. The ruling means that the fathers of two deceased Guantanamo detainees cannot pursue their federal court cases against government officials for their sons' deaths. They have no judicial remedy in U.S. courts for any violation.
Section 7 of the MCA reads as follows:
(1) 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.
(2) Except as provided in [section 1005(e)(2) and (e)(3) of the Detainee Treatment Act of 2005], 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 detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. Secs. 2241(e)(1) and (2).
The court held that subsection (2) revoked federal court jurisdiction over the fathers' claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments to the Constitution.
The court distinguished Boumediene v. Bush, the 2008 case holding that subsection (1) unconstitutionally revoked the writ of habeas corpus in violation of the Suspension Clause. The court said that while the Boumediene Court didn't distinguish between subsections (1) and (2), its reasoning, based on the Suspension Clause, only applied to subsection (1), not subsection (2) (which doesn't implicate the Suspension Clause). So subsection (2) is still valid; and it bars the fathers' suit here.
The court rejected the fathers' argument that subsection (2) unconstitutionally deprived them of a remedy for a violation of a constitutional right. The court said that the Supreme Court's Bivens jurisprudence, which rejects claims for money damages when certain immunities apply or when "special factors" counsel against such claims, supports the idea that "Not every violation of a right yields a remedy, even when the right is constitutional." Op. at 7 (quoting Kiyemba v. Obama, 555 F.3d 1022, 1027 (D.C. Cir. 2009)).
Here, it means that Congress can validly revoke jurisdiction for this class of claims, and that the detainees' fathers--and any other alien detained at Guantanamo and claiming a violation of right--are out of luck.
February 21, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fifth Amendment, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 1, 2012
Tracey Cooper-Harris (pictured right), a member of the US Army for twelve years, has filed a complaint against the US for veterans benefits for her same-sex partner, arguing that DOMA and the VA definition of "spouse" violates the Fifth Amendment's equal protection component. Cooper-Harris is represented by the Southern Poverty Law Center, the organization that also litigated the landmark case Frontiero v. Richardson involving a woman's right for military benefits for her husband.
This lawsuit joins the other constitutional challenges to DOMA including one filed by the Service Members Legal Defense Network, as well two companion decisions by federal district judge Tauro declaring DOMA unconstitutional, the Obama DOJ's decision not to defend it, and legislative efforts at repeal.
(h/t Jen Hogg)
Sunday, January 29, 2012
Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.
Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage. The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act." That section allows exclusion of a visa applicant from the United States for any of six security-related grounds. The Consulate did not reveal the precise ground for exclusion.
Mostofi sued, arguing that the exclusion violated her fundamental right to marry.
Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches. But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).
The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation. Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest." Op. at 7.
January 29, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Monday, December 19, 2011
The First Amendment problems with AETA, the Animal Enterprise Terrorism Act, are well known. Last year, a Northern California District Judge dismissed the high profile indictments against Joseph Buddenberg and three other defendants under AETA, 18 USC 43, on the basis of a Fifth Amendment failure to allege sufficient facts, although related to the First Amendment, as we discussed here. AETA itself concludes with “Rules of Construction” which provide in relevant part that nothing in this section shall be construed"
(1) to prohibit any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution;
(2) to create new remedies for interference with activities protected by the free speech or free exercise clauses of the First Amendment to the Constitution, regardless of the point of view expressed, or to limit any existing legal remedies for such interference . . . . "
The Center for Constitutional Rights has filed a complaint, Blum v. Holder, in the District of Massachusetts federal court challenging AETA on its face and as applied as a First Amendment violation. The plaintiffs are described as "five longtime animal rights activists whose advocacy work has been chilled due to fear of being prosecuted as a terrorist under the AETA." The complaint alleges that "The AETA classifies certain protected speech and activity as a “terrorist” crime" and "punishes individuals who alone, or with others, criticize or demonstrate against what the statute vaguely identifies as an “animal enterprise,” if that otherwise permissible speech damages the property or profitability of the animal enterprise or even a person or entity connected with it." The complaint also alleges that AETA defines “animal enterprise” uncommonly broadly, "to include almost any business that buys or sells animal products:"
As such, it insulates a large number of businesses from the types of criticism that are deeply rooted in our constitutional tradition. For example, labor picketers, who seek to affect the bottom line of an employer engaged in unfair labor practices (that happens to sell animal products) are subject to prosecution under the act if their peaceful, lawful picket “causes the loss of any…personal property,” including profits.
The complaint claims that AETA violates the First Amendment on the grounds of overbreadth, on the grounds of impermissible viewpoint and content discrimination, and violates the First and Fifth Amendments on vagueness grounds.
More about the specific plaintiffs and the litigation is available on the CCR website.
Thursday, December 15, 2011
Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.
In his Presidential Proclamation last week, Obama stated:
On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.
Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.
Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.
Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."
The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights. Instead, they concerned Congress itself:
Article the first . . . 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.
Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
The latter became the 27th Amendment, ratified more than two centuries later in 1992.
- Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
- Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[image from National Archives via]
December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 7, 2011
Chief Judge Royce C. Lamberth (D.D.C.) ruled on Monday in Gordon v. Holder that the tax requirement in the federal Prevent All Cigarette Trafficking Act, or PACT, likely violates due process, but not the Tenth Amendment. Judge Lamberth also ruled that the PACT's ban on mailing cigarettes through the U.S. mail does not violate equal protection or due process.
Plaintiff Gordon owns and runs a cigarette retail business. He previously took orders by mail and through the internet; since 2010, he takes only phone orders and walk-ins. He challenged two provisions of the PACT: its ban on mailing cigarettes through the U.S. mail; and its requirement that remote cigarette sellers pay applicable state and local sales taxes in advance.
Judge Lamberth ruled that Gordon's claim that the tax provision violates due process is likely to succeed. Judge Lamberth concluded that Gordon didn't have sufficient contacts with some states where he sold cigarettes to satisfy the "minimum connection" test in Quill Corp. v. North Dakota (and borrowed from International Shoe Co. v. Washington). Without the minimum connection, the tax provision likely violates due process.
But Judge Lamberth rejected Gordon's other claims. Judge Lamberth wrote that the PACT's ban on sales of cigarettes through the U.S. mail satisifed rational basis review, and that the PACT's tax provision didn't commandeer states or their officers. (Nothing in PACT compels states to adopt or to change their taxes. Instead, the PACT simply compels cigarette retailers to comply with applicable state taxes.)
Judge Lamberth thus issued a preliminary injunction against the tax provision on due process grounds, but denied a preliminary injunction on Gordon's other claims.
December 7, 2011 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Sunday, October 9, 2011
Sources close to the process that resulted in a yet-to-be-disclosed OLC memo authorizing the targeted killing of Anwar al Awlaki have revealed more and more information about what's in that memo, between last week's story in WaPo and today's story in the NYT. And according to the source or sources, the legal justification seems pretty close to the justification that State Department Legal Adviser Harold Koh gave in his 2010 speech to the American Society of International Law, which we covered and analyzed in May 2010. Koh relied heavily on the right of self defense under international law and on the AUMF; he made only little mention of the assassination ban under long-standing executive order and the Due Process Clause. See our May 2010 analysis for more on those sources.
But if we have some little hint of the administration's legal justification, we don't yet have much information on the process, except this sentence in the NYT story today:
The deliberations to craft the memo included meetings in the White House Situation Room involving top lawyers for the Pentagon, State Department, National Security Council and intelligence agencies.
Now Members of Congress are calling on the Justice Department to release the memo, or at least non-classified portions of it, according to WaPo. The administration hasn't responded to congressional or media requests for information.
Monday, August 8, 2011
A divided three-judge panel of the Seventh Circuit ruled on Monday in Vance v. Rumsfeld that a Bivens suit by two Americans alleging that former Secretary of Defense Donald Rumsfeld authorized their torture can move forward.
If the case sounds familiar, that's because it is: Just last week, Judge Gwin (D.D.C.) ruled in Doe v. Rumsfeld that a nearly identical suit can move forward. (The plaintiffs in the suits alleged similar torture at the same site, Camp Cropper, the U.S. military prison in Iraq.) The key difference between these cases and the D.C. Circuit's rejection of a torture claim against Rumsfeld in June: The plaintiffs here are U.S. citizens; the plaintiffs in the D.C. Circuit case, Arkan v. Rumsfeld, were aliens. (The D.C. Circuit ruled that it wasn't clearly established in 2004, the time of the actions there, that the Fifth and Eighth Amendments applied to aliens detained abroad; Rumsfeld thus had qualified immunity.)
Judge Hamilton's opinion in Vance, joined by Judge Evans, tracked Judge Gwin's reasoning, but with over 80 pages of detail. The meaty opinion seems carefully tailored to withstand any appeal.
In short, the court ruled that the plaintiffs sufficiently pleaded their allegations that Secretary Rumsfeld authorized treatment that violated the Fifth Amendment's Due Process Clause (substantive due process)--and that he reasonably should have known it. The court thus ruled that the plaintiffs pleaded facts sufficient to satisfy the pleading standard in Ashcroft v. Iqbal and that Rumsfeld did not qualify for immunity. The court also ruled that there was no reasonable alternative way for the plaintiffs to bring their claims and that there were no special factors counselling against a Bivens remedy. In particular, the court rejected the defendants' separation-of-powers arguments--like those in Doe--that courts don't have any business in cases dealing with national security and foreign affairs, especially in times of war. Here's a flavor of what the court said on that point:
The unprecedented breadth of defendants' argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants' theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.
Op. at 43.
Judge Minion wrote in dissent that the court improperly extended Bivens to this case--a case in which "United States citizens alleg[ed] torture while held in an American military prison in an active war zone." Op. at 81.
This makes two cases in two weeks--one district court, one circuit court--allowing very similar torture suits to move forward against Rumsfeld. We'll watch for appeals.
[Image: Anonymous, Execution, Wikimedia Commons]
August 8, 2011 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fifth Amendment, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 3, 2011
Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings. In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security.
The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint. The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention. He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.
Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.
The court disagreed. Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues. Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged). Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.
Judge Gwin also rejected Rumsfeld's qualified immunity defense. Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process. (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal. Instead, it was a direct claim for authorizing torture.) But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary. He thus dismissed these two claims.
The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case. Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for torture by an alien detained overseas. Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case). But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy.
If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.
August 3, 2011 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Executive Authority, Fifth Amendment, Foreign Affairs, Fundamental Rights, International, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)