Constitutional Law Prof Blog

Padilla Rule Does Not Apply Retroactively

The Supreme Court ruled this week in Chaidez v. United States that the rule announced in Padilla v. Kentucky (2010)--that a criminal defense attorney has to advise his or her client of the deportation risks of a guilty plea--does not apply retroactively to cases already final on direct review.

Retroactivity is governed by the rule in Teague v. Lane (1989).  Under that case, a person whose conviction is already final may not benefit from a "new rule" announced in a subsequent case.  That is: If the Court crafts a "new rule," it doesn't apply retroactively.  Only the application of a settled rule applies retroactively.  Thus the question here was whether the Padilla rule--that an attorney provides ineffective assistance of counsel under Strickland v. Washington by failing to advise the client that he or she could be deported if he or she pleads guilty--is "new." 

The Court in Chaidez said that the usual Strickland/IAC case does not produce a new rule, and therefore would apply retroactively.  But it also said that Padilla was a different sort of IAC case.  It was different because the Court in Padilla had to first determine whether the Strickland/IAC analysis applied at all to a case like that--a case involving collateral, not direct, consequences of an attorney error.  That was an open question before Padilla--and one that many states had resolved against the criminal defendant.  Therefore when the Court announced its rule in Padilla, it broke new ground: it answered an open question, and it answered it in a way that cut against a good deal of state and lower federal court jurisprudence.  This, it said in Chaidez, meant that Padilla set out a new rule, and that it would not apply retroactively.

Justices Sotomayor, joined by Justice Ginsburg, dissented, arguing that Padilla did not set out a new rule, but instead simply applied the Strickland rule to a new set of facts.

SDS

Seventh Circuit Denies Review of Gun Ruling

The Seventh Circuit today denied en banc review of its earlier three-judge panel decision in Moore v. Madigan overturning Illinois's prohibition on carrying a ready-to-use gun outside the home.  The panel held that the prohibition violated the Second Amendment.  Today's denial reaffirms that ruling and sets the case up for potential Supreme Court review.  (As of this writing, Illinois AG Lisa Madigan's press office couldn't say whether the state would seek Supreme Court review.)

Recall that the case challenged Illinois's prohibition on carrying guns outside the home.  The earlier panel held that the text, history, and recent precedent on the Second Amendment all supported the conclusion that the Second Amendment right to self-defense extends outside the home.  Judge Posner wrote that opinion; Judge Williams dissented.

Judge Hamilton, joined by Judges Rovner, Wood, and Williams, dissented from today's denial of en banc review.  The dissent echoed Judge Williams's earlier dissent--that the majority's reading stretches the Supreme Court's holdings in Heller and McDonald, both of which turned on a right of self-defense in the home:

First, extending the right to bear arms outside the home and into the public sphere presents issues very different from those involved in the home itself, which is all that the Supreme Court decided in [Heller] and [McDonald].  I will not repeat the debate in the panel opinions reviewing the historical and empirical evidence, for that debate was, in the majority's view, essentially dicta.  The core of the panel majority's reasoning is that because there is a need for self-defense outside the home as well as in, Heller and McDonald should extend to public carrying of loaded firearms. . . .  The logic has some appeal, but its simplicity overlooks qualitative differences between a private home and public streets and buildings that must be considered as we try to interpret [those cases].

Judge Hamilton also noted that the majority's approach sets the Second Amendment test somewhere between rational basis review and strict scrutiny, thus allowing a range of gun regulation, even if not an outright ban on carrying guns outside the home:

• reasonable limits on who can carry a gun outside the home, including training and proficiency requirements;
• reasonable limits on where qualified persons can carry firearms in public;
• reasonable limits on how qualified persons may carry firearms (e.g., loaded or not, concealed, etc.);
• reasonable limits on which firearms may be carried; and
• allowing private bans (by bar owners, restaurant owners, and the like) on firearms.

SDS

Detention Incident to Search Warrant Doesn't Stretch a Mile

The Supreme Court ruled today in Bailey v. United States that officers can't detain a suspect incident to the execution of a search warrant a mile away from the property searched.  The ruling underscores the geographic limit to the detention authority in Michigan v. Summers, allowing a detention incident to the execution of a search warrant even without probable cause.  (Summers is a narrow exception to the general probable cause requirement under the Fourth Amendment.) The case says that the Summers rule is "limited to the immidate vicinity of the premises to be searched." 

While the ruling favors Bailey and a geographically-bound reading of the Summers exception, the evidence that Bailey sought to exclude may ultimately make its way into the case on a different rationale.  In short, this ruling ultimately might not be a game changer for Bailey's criminal case.

The case started when officers went to Bailey's apartment to execute a search warrant.  (Nobody challenged the search warrant.)  Officers saw Bailey and another man leave the apartment in a car, and they followed them.  Officers pulled Bailey over about a mile from the apartment, patted him down, and found a ring of keys that they later discovered opened the apartment.  After they found a gun and drugs in the apartment, they charged Bailey.  Bailey moved to suppress the apartment key and statements he made when he was stopped.  The state argued that the officers validly detained him pursuant to the execution of the search warrant, under Summers. 

The Supreme Court ruled for Bailey.  Justice Kennedy wrote for the majority that a Summers detention incident to the execution of a search warrant extends only to the immediate vicinity of the place to be searched.  He wrote that the law-enforcement reasons for the Summers rule--officer safety, facilitating the completion of the search, and preventing flight--all work within that geographic limit, but not a mile outside of it.  He also wrote that a detention away from the search site involved a greater intrusion into privacy. 

Ruling that Summers did not authorize the search, Justice Kennedy wrote that the officers would need to rely on some other rationale for the detention and pat-down--perhaps Terry v. Ohio and reasonable suspicion.  But while the trial court denied Bailey's motion on both Summers and Terry grounds, the Second Circuit affirmed on Summers alone.  Thus the Supreme Court didn't reach the Terry issue.  All this means that the keys could ultimately be admitted.

Justice Scalia, joined by Justices Ginsburg and Kagan, wrote to say that, contrary to the dissent's approach, the Summers rule is categorical, and not susceptible to case-by-case interest balancing.  Summers, he wrote, "embodies a categorical judgment that in one narrow circumstance--the presence of occupants during the execution of a search warrant--seizures are reasonable despite the absence of probable cause."

Justice Breyer, joined by Justices Thomas and Alito, dissented.  He wrote that the officers acted reasonably, considering the flight risk, possibility of destruction of evidence, and possibility of injury. 

SDS

Court to Test Individual Campaign Contribution Limits

The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees.  (The jurisdictional statement is here.)  While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.

It's not clear how much the case could matter to the sheer amount of money in politics.  That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations.  But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics.  (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.)  It could be the next step after Citizens United in further opening the money spigot.

The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act.  BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year.  These are called "base limits."  But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years.  These are the "biennial limits." 

McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights.  In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.

To see why, start with the old biennial limit upheld by the Court in Buckley.  Back then, there were no base limits for contributions to PACs or national or local parties.  (There was a base limit on contributions to candidates, though--$1,000 per.)  McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates.  How?  By contributing massive amounts through political committees that would simply funnel the money to the candidate. 

McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way.  This is because BCRA's base limits themselves restrict circumvention.  (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate).  McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights.  (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.)  McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit.  He claims that that limit serves only to prevent him from contributing to as many people as he'd like.

McClutcheon also argues that the biennial limits are too low.

The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit).  This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction.  Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction.  This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics). 

SDS

"Lincoln" Errs . . . And Corrects Errors

Prof. Edward Zelinsky (Cardozo) wrote last week in the Hartford Courant about a mistake in the movie "Lincoln."  The error: Lincoln wouldn't have signed the Amendment.  Zelinsky explains:

In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery.  The problem is that presidents do not sign constitutional amendments.  Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this.  He would not have declared his intention to sign an amendment that was not his to sign.

But Zelinsky's willing to cut screenplay author Tony Kushner some slack:

Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery.  As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable.  Lincoln's commitment was decisive.

As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made."  Good point.

(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment.  In fact, Connecticut's representatives voted for it.) 

But if the film committed errors, it also helped correct them--or at least one of them.  According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment.  Last week it did.

SDS

Is the First Amendment Civil Rights Claim in Jeopardy?

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

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

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

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

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

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

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

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

Judge Boasberg rejected the argument:

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

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

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

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

SDS

The Contraception Mandate and Private Employers in the Circuits

There's a growing split among circuit courts that have ruled on whether to grant an injunction pending appeal to private employers who object to the contraception mandate under HHS regs pursuant to the Affordable Care Act.  The underlying issues--whether the mandate violates the Religious Freedom Restoration Act or free exercise--seem to be moving closer and closer to Supreme Court review.

(These issues are different than the issue in the other cases testing the mandate--by religious employers.  Courts in those cases have held them in abeyance or dismissed them outright in anticipation of new HHS regs that exempt religious employers from the mandate.  The regs would exempt religious employers, but not secular corporations owned by religious individuals.)

The Seventh Circuit ruled recently, for the second time, that a private employer was likely to succeed on its RFRA claim against the contraception mandate.  That court in Grote v. Sebelius held that the corporation's owners' religious objections to the mandate, the government's likely failure to justify the mandate at strict scrutiny under the RFRA, and the owners' harm meant that the contraception mandate must be enjoined pending the company's appeal.  The case echoes that court's earlier ruling in Korte v. Sebelius.  (The difference between the two cases--that the company in Grote was self-insured, while the company in Korte wasn't--didn't justify different treatment, according to the court.)  Both rulings drew dissents by Judge Rovner, but the Grote dissent was especially sharp and lengthy.  In short, Judge Rovner took issue with the idea that the secular corporations enjoyed free exercise rights, even if the owners did.

The Eighth Circuit has lined up with the Seventh Circuit, while the Third, Sixth, and Tenth Circuits have gone the other way.  (Recall that Justice Sotomayor denied Hobby Lobby's application for a stay in the Tenth Circuit case.  The Seventh Circuit took account of that denial, but distinguished it, saying that the standard for a stay at the Supreme Court was much higher than the standard for an injunction pending appeal.)

These cases are on a motion for an injunction pending appeal, not the underlying merits.  Still, they presage a merits ruling, as the courts consider the likelihood of success on the merits as part of the injunction analysis.

We covered a different lower court ruling here.  The Beckett Fund for Religious Liberty has a full scorecard of the cases, including lower court cases, here.

SDS

Is the Violence Against Women Act Unconstitutional?

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

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

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

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

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

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

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

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

SDS

Rivkin and Grossman on the Second Amendment, Assault Weapons, Magazine Size

President Obama's proposals to ban assault weapons and limit the size of magazines violates the Second Amendment, according to David B. Rivkin, Jr., and Andrew M. Grossman writing in last week's WSJ.  They say that the ban and limit would interfere with the Second Amendment right to bear arms for self defense--a right, they say, that ought to be applied every bit as rigorously as the First Amendment right to free speech.

Lots of gun-rights advocates have made similar claims, but Rivkin and Grossman's piece may be particularly notable: Rivkin was on the early edge of certain other constitutional claims that many did not take seriously at the time but that were nevertheless ultimately vindicated.  Recall that he argued early in the debates that the universal coverage provision, or the so-called individual mandate, in the Affordable Care Act exceeded congressional authority under the Commerce Clause.  (Rivkin made that argument on the pages of the WSJ, too.)  Many didn't take this seriously.  But last summer, the Court said he was right (although it also upheld congressional authority to enact the provision under its taxing power, which Rivkin also argued against).  

Anyway, here's Rivkin's case against President Obama's proposals:

[Assault weapons] may look sinister, but they don't differ from other common weapons in any relevant respect--firing mechanism, ammunition, magazine size--and so present no greater threat to public safety.  Needless to say, the government has no legitimate interest in banning guns that gun-controllers simply do not like and would not, themselves, care to own.

Also constitutionally suspect are restrictions on magazine size.  There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York state last month) would impair the right to self-defense.  A magazine with 10 rounds may provide adequate protection against a single nighttime intruder.  But it may not: What if there are two intruders?

In short: assault weapons and 10-round magazines may be necessary for self-defense, and there's no good reason for government to restrict them.

Rivkin and Grossman argue that Second Amendment restrictions--even including things like requirements to carry gun insurance and even especially high taxes on ammunition--ought to get the full First Amendment treatment: strict scrutiny, or something close to it.

SDS

DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional

A Department of Justice white paper leaked to NBC gives the more detailed version of the administration's legal case for drone attacks against overseas Americans associated with al-Qa'ida.  (Note that the white paper is unsigned and undated; it is not an OLC memo.  It is titled simply "Department of Justice White Paper.")  Michael Isikoff wrote on the white paper here.  The leak is significant, because the administration has steadfastly refused to release a formal legal justification for the program.  Just last month, the administration successfully defended against a FOIA claim in federal court seeking legal justification for the program.)

According to the white paper, the president has constitutional authority to order drone attacks and is not prohibited by due process.  The paper says that the president has authority to respond to order strikes as part of his authority to defend the country against the imminent threat posed by al Qa'ida and associated forces, including U.S. citizens associated with al Qa'ida, under "the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law." 

According to the paper, due process does not prohibit this:

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clasue and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation.  Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life.  But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arise from an individual who is a senior operational leader of al-Q'aida or an associated of al-Q'aida and who is engaged in plotting against the United States.

Instead, the white paper sets out a three-part test for targeted killing of a U.S. citizen who is outside the United States and who is "an operational leader continually planning attacks against U.S. persons and interests":

(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) where a capture operation would be infeasible--and where those conducting the operation continue to monitor whether capture becomes infeasible; and

(3) where such an operation would be conducted consistent with applicable law of war principles.

The paper says that "[i]n these circumstances, the 'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent atack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force."

The paper, however, goes on to define "imminent" quite broadly (and surprisingly): "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."  The paper also goes on at length as to why this isn't unlawful murder. 

It mentions as part of the justification that "under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations."

SDS

Lack of Prison Resources Valid Consideration in Prisoner Civil Rights Claim

A split three-judge panel of the Ninth Circuit ruled today in Peralta v. Dillard that a trial judge can give a jury an instruction to consider sparse prison resources as part of its deliberation over a prisoner civil rights suit against a prison dentist for lack of adequate dental care.  

The ruling came after a prisoner brought a 1983 suit for violation of his Eighth Amendment rights against a prison dentist for failing to provide adequate and timely dental care.  The judge gave the jury an instruction that jurors "must . . . consider[] . . . the context of the personnel, financial, and other resources available . . ." and "[a] doctor or dentist is not responsible for services which he or she could not render or cause to be rendered because the necessary personnel, financial, and other resources were not available to him or her or which he or she could not reasonably obtain."

The majority explained:

For example, suppose, as here, the established standard is 1 dentist for every 950 inmates, but the dentist must work at a 1 dentist for every 4200-4500 inmates ratio.  Is the individual dentist to be held responsible because he cannot give proper care to the inmates, that is, he cannot reasonably respond to the risk of harm that those underserved inmates face when dental problems occur or are about to occur?  We think not.

Op. at 8.

The majority was quick to say, however, that a plaintiff might have a claim for damages against the government entity itself, when that entity incarcerates individuals but refuses to provide the proper funds.  A plaintiff might also have an action for injunctive or declaratory relief.

Judge Berzon issued a sharp dissent, arguing that the majority misread circuit law and that given the facts a reasonable juror could have concluded that the dentist satisfied the elements for an Eighth Amendment violation.

SDS

Daily Read: The Story Behind The Ninth Circuit's Self-Abortion Opinion

In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.

But who is Jennie Linn McCormack?  And how common is procuring abortion "medications" via the internet?

Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").  

Calhoun also contextualizes McCormack's situation:

Determining how many American women have had home abortions is exceedingly difficult: The Centers for Disease Control and Prevention does not track illegal abortions. There is no blood test for drugs like Cytotec, and so such an abortion is indistinguishable from a natural miscarriage, even to a doctor. However, the proliferation of online dispensers suggests a rising demand. There are thousands of websites selling Cytotec for as little as $45 to $75 (compared with $300 to $800 for a legal medicated abortion in a clinic). Some claim to offer the harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or aspirin, or nothing at all. (Possible sources for the drugs include Mexico, where Cytotec is available over the counter, or even the United States, since it’s also prescribed here as an ulcer medication.)

The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.

Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.

RR

NYC Bar Event on 40th Anniversary of Roe v. Wade

The Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm

2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.

Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School

Speakers:
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights

Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair

More information here.

150th Anniversary of the Emancipation Proclamation

Today marks the 150th anniversary of the Emancipation Proclamation, signed by President Abraham Lincoln on January 1, 1863. 

Here's the transcription from the National Archives:

The Emancipation Proclamation

Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

By the President: ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

 RR
[pages of proclamation via]

Government Moves to Dismiss Targeted Killings Case

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

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

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

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

Memo at 1.

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

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

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

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

SDS

Seventh Circuit Overturns Illinois Prohibition on Carrying Guns

A divided three-judge panel of the Seventh Circuit ruled today in Moore v. Madigan that Illinois's prohibition on carrying a ready-to-use gun outside the home violates the Second Amendment.  The crux of the ruling is the majority's view that the Second Amendment protects the right to self defense even outside the home.

Judge Posner wrote a meandering opinion for the majority, examining history, text, precedent, social science, and even the fact that Illinois is the only state with a flat ban on carrying ready-to-use guns.  Judge Posner wrote that the Second Amendment text ("keep" and "bear") and the language of both Heller and McDonald suggested that the right to self defense in those cases was not limited to the home. 

Judge Posner applied the Seventh Circuit's "strong showing" standard from U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), addressing the federal ban on firearm possession of any person "who has been convicted in any court of a misdemeanor crime of domestic violence."  18 U.S.C. Sec. 922(g)(9).  Under that standard, the government has to make a "strong showing" that a gun ban was vital to public safety.  Here, Illinois had to make an even stronger showing than the government in Skoien, because "the curtailment of gun rights [under Illinois law is] much narrower."  Op. at 14.  The standard is higher--maybe much higher--than rational basis review.  The court explained:

A blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would.  In contrast, when a state bans guns merely in particular place, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that's a lesser burden, the state doesn't need to prove so strong a need.  Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun.  And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill.  Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.

Op. at 15.

Judge Posner said that Illinois failed to meet this standard.  In particular, Judge Posner wrote that Illinois was alone among the 50 states in having such a restrictive law, and that "[i]f the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it."  Op. at 16.

Judge Williams dissented, arguing that the Supreme Court in Heller and McDonald did not answer the question here--whether the Second Amendment protects the right to carry guns for self defense outside the home--and that the court should defer to the State unless and until the Supreme Court rules otherwise.

SDS

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

• Whether the mandates violate the Religion Clauses or the RFRA;
• Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
• Whether the mandates violate equal protection;
• Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

The Constitutional Status of Adultery in the Military

Adultery has been dominating the news, including questions about whether or not it can "still be a crime."  As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas.  Recall that Justice Scalia, dissenting, in Lawrence wrote that:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

As Scalia recognized, Lawrence "calls into question" the criminalization of adultery.  It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.

But is the military different?  Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances.  The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.

Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134.   Similarly, writing a year earlier, attorney  Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.

It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context.  But perhaps there is always "more."

RR
[image: 1926 movie poster via]

Seventh Circuit Rejects Torture Claim Against Rumsfeld

The en banc Seventh Circuit this week ruled in Vance v. Rumsfeld that two American military contractors had no cause of action against former Defense Secretary Donald Rumsfeld for torture.  The ruling was expected: the court previously vacated the three-judge panel ruling allowing the case to move forward; oral arguments suggested that the full court was hostile to the plaintiffs' claims; and the ruling aligns with similar (but distinguishable and less sweeping) rulings in the Fourth and D.C. Circuits.  We posted last on the case, with links to an earlier post, here.

The ruling ends the plaintiffs' case and effectively creates absolute immunity against such claims for military personnel and their civilian commanders--at least in the Seventh Circuit.  Given similar rulings in the Fourth and D.C. Circuits--and no circuit going the other way--the case almost surely will not attract the attention of the Supreme Court.  (Even if the Court took it up, it would almost certainly affirm the Seventh Circuit's ruling, given its trend with Bivens actions.)  The case also extended the no-supervisory-liability rule for Bivens claims (affirmed in Iqbal), holding that Secretary Rumsfeld's alleged authorization of torture, even if true, was simply too attenuated from the actions of those who actually tortured the plaintiffs.  

The case involved two American military contractors who claimed that they were detained and tortured by military authorities in Iraq.  They sued Secretary Rumsfeld under Bivens based on his alleged authorization of torture techniques.  

The en banc Seventh Circuit reversed a three-judge panel and held that Bivens did not offer a remedy to the plaintiffs.  Chief Judge Easterbrook, writing for the court, set the tone early in his opinion, expressing hostility to "creating new Bivens claims":

[The Supreme Court] has not created another [Bivens] remedy during the last 32 years--though it has reversed more than a dozen appellate decisions that had created new actions for damages.  Whatever presumption in favor of a Bivens-like remedy may once have existed has long since been abrogated.  The Supreme Court never created or even favorably mentioned the possibility of a non-statutory right of action for damages against military personnel, and it has twice held that it would be inappropriate to create such a claim for damges.  The Court has never created or even favorably mentioned a non-statutory right of action for damages on account of conduct that occurred outside the borders of the United States.  Yet plaintiffs propose a novel damages remedy against military personnel who acted in a foreign nation--and in a combat zone, no less.

Op. at 9.  Chief Judge Easterbrook wrote that "special factors" counseled against a Bivens remedy, in particular the courts' relative inability to assess the merits of military policies and decisions.  Chief Judge Easterbrook also mentioned that Congress declined to create a statutory remedy, suggesting that it didn't want plaintiffs suing military personnel or their superiors, and that Congress created two administrative paths to remedies but that the plaintiffs did not pursue them.  "But Congress has not authorized awards of damages against soldiers and their superiors, and creating a right of action in common-law fashion would intrude inapropriately into the military command structure."  Op. at 17.  

Note that the ruling (Part III) extends to "soldiers and their superiors," even though this case was only against Secretary Rumsfeld.

Chief Judge Easterbrook also wrote that Secretary Rumsfeld's authorization of torture was too attenuated from the actions of those who actually tortured the plaintiffs to survive the no-supervisor-liability rule for Bivens claims.  The plaintiffs sought to navigate this rule by alleging that Secretary Rumsfeld personally authorized torture--i.e., that he wasn't vicariously liable, but was rather directly responsible.  But Chief Judge Easterbrook wrote that Iqbal requires that a defendant "wants the unconstitutional or illegal conduct to occur."  Op. at 19.  That, he said, the plaintiffs did not allege.

Judge Wood concurred in the judgment only but wrote separately to emphasize that the alleged actions were torture, and could not hide behind the euphamism of enhanced interrogation techniques.  Judge Wood also disagreed with the majority insofar as its opinion (Part III) would insulate military personnel (and not merely the Secretary of Defense) from Bivens liability.  

Judges Hamilton, Rovner, and Williams all wrote a separate dissent and all joined each others' dissents, emphasizing different points.  Judge Hamilton pointed out that the ruling gives more rights to aliens (under the Torture Victim Protection Act) than U.S. citizens and explained in great detail why U.S. law, in fact, assumes that the plaintiffs should have had a Bivens claim.  Judge Rovner argued that the plaintiffs pleaded sufficiently specific facts related to Secretary Rumsfeld's direct responsibility to survive the pleading standards set in Iqbal and Twombley.  And Judge Williams emphasized the remarkable scope of the majority's opinion.  "No case from our highest court or our sister circuits has approached such a sweeping conclusion."  Op. at 73.

SDS

Divided Ninth Circuit Panel Rules IAC at Sentencing for Death Row Inmate

A split three-judge panel of the Ninth Circuit ruled in Stankewitz v. Wong that a death row inmate's attorney failed to provide effective assistance of counsel at the penalty phase of his trial, in violation of his Sixth Amendment right to counsel, because his attorney failed to present certain mitigating evidence.  The court ordered the state of California to either vacate and set aside the inmate's death sentence, unless the state initiates proceedings to retry his sentence within 90 days, or to resentence him to life without parole.

The case comes just three years after the Supreme Court reversed the Ninth Circuit in Wong v. Belmontes (2009), another IAC-at-sentencing case.  That case held that Belmontes could not show that his attorney's performance at the penalty phase failed the prejudice prong of Strickland v. Washington because additional mitigating evidence would have been merely cumulative and because additional mitigating evidence would have opened the door to aggravating evidence that Belmontes was responsible for a second murder.  The case says that a court in assessing an ineffective assistance of counsel claim at the penalty phase needs to examine both the pros and cons of introducing additional mitigating evidence, and that sometimes this evidence can be a two-edged sword.

The split on the panel, just three years after Belmontes, suggests that there's still some disagreement on the Ninth Circuit on how to assess an IAC claim at sentencing.  Or, as Judge O'Scannlain wrote in dissent, "The Supreme Court took notice and repudiated [the majority's] reasoning in Wong v. Belmontes.  Yet our circuit is already showing signs of backsliding."  The case may give the Supreme Court yet another chance to clarify the standard.

Stankewitz is the longest-serving inmate on California's death row.  He was convicted of killing a woman in a 1978 carjacking and sentenced to death.  He argued on habeas that his attorney was ineffective at the penalty phase for failing to present mitigating evidence.  The district court agreed, and the Ninth Circuit affirmed.

The majority (Judges Fisher and Bybee) wrote that Stankewitz showed prejudice for failure to introduce mitigating evidence at sentencing, because the available evidence was indeed mitigating, and any harm that might have come from it (i.e., the second edge to its sword) was merely cumulative of other aggravating evidence that the prosecution already introduced.  According to the majority, the case thus looked more like Wiggins v. Smith and Williams v. Taylor (2000)--both finding IAC at sentencing based on counsel's failure to investigate and prepare--than Belmontes.

Judge O'Scannlain wrote in dissent that the majority may have distinguished Belmontes, but that the distinctions didn't show prejudice.  Judge O'Scannlain argued that the court should have remanded to the district court to apply the Belmontes standard.

SDS