Monday, June 2, 2014
On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.
Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation. While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."
Today's opinion in Bond v. United States again reverses the Third Circuit. The focus in oral argument was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism. And while today's decision is unanimous, there are multiple concurring opinions.
The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited." For the Court,
the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.
Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power.
Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue.
In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.
Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional. Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power." And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."
So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."
And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.
June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 13, 2014
Japanese Prime Minister Shinzo Abe plans to change Japan's pacifist constitution--not by amending it, but by reinterpreting it.
Abe is expected to announce a plan to amend several laws that would allow the Japanese Self-Defense Forces to engage in collective self-defense, that is, military defense of allied countries even when Japan is not directly threatened. This will mark a shift in the role of Japan's military overseas, which is currently limited to non-combat peacekeeping duties under Article 9 of the Constitution. Article 9 reads:
Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
Abe's plan is designed to sidestep the more cumbersome constitutional amendment process. But it has drawn critics: a high-profile group of scholars and writers have denounced the plan, and there's a campaign afoot to get Article 9 (the traditional, pacifist version) on the Nobel Committee's radar screen for the Peace Prize as a way to push back against Abe's reinterpretation.
If successful, Abe's plan would change 60 of practice under Article 9--without a constitutional amendment.
Tuesday, April 15, 2014
Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights. The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated. It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.
Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":
Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system. I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.
Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society. Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa. We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.
On the use of foreign law:
Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries. With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions. This is particularly true with regards to the area of socioeconomic rights and property law.
On closing the gap between reality and an aspirational Constitution:
What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.
I think that the Court, however, has done fairly well in its efforts to close that gap. Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .
On the next big issues:
The next major court battles will involve the agricultural sector. If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group . . . . For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively. So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.
Wednesday, April 9, 2014
Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt. The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog. Check it out.
Monday, April 7, 2014
Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?"
The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer. The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today.
Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights," posting her written remarks on the UK Supreme Court site. Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws? Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without." She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself:
Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.
This leads her to proclaim:
If you go into the market place you cannot pick and choose which laws you will obey and which you will not.
This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.
Another difference: The arguments before the UK Supreme Court are televised live.
April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, March 27, 2014
In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."
This defining issue is economic inequality. Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation.
The proposal is a "wealth tax." Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges. But perhaps it's not.
Friday, March 14, 2014
Uganda's controversial law, The Anti-Homosexuality Act, 2014, long-linked to United States Evangelicals, has been challenged as unconstitutional by a petition filed in the Constitutional Court of Uganda.
The vast majority of the claims of unconstitutionality focus on the rights provisions in the Uganda Constitution, including explicit rights of equality, privacy, dignity, civic participation, freedom from cruel, inhuman and degrading punishment, expression, for persons with disabilities, and fair hearing. The claims also rely on the principles in the "National Objectives and Directive Principles of State Policy" which are part of the Constitution.
Here are a few examples of the ultimate legal arguments in the petition:
THAT sections 1, 2 and 4 of the Anti-Homosexuality Act 2014, in defining and criminalising consensual same sex/gender sexual activity among adults in private, are in contravention of the right to equality before the law without any discrimination and the right to privacy guaranteed under Articles 2(1) & (2), 21(1), (2) & (4) and 27 of the Constitution of the Republic of Uganda respectively;
THAT section 2(1)(c) of the Anti-Homosexuality Act 2014, in criminalising touching by persons of the same sex, creates an offence that is overly broad and is in contravention of the principle of legality under article Articles 2(1) & (2), 28(1), (3b), (12), 42 and 44(c) of the Constitution of the Republic of Uganda;
THAT Sections 7 and 13(1) & (2) of Anti-Homosexuality Act 2014, in criminalising aiding, abetting, counselling, procuring and promotion of homosexuality, create offences that are overly broad, penalise legitimate debate, professional counsel, HIV related service provision and access to health services, in contravention of the principle of legality, the freedoms of expression, thought, assembly and association, and the right to civic participation guaranteed under principle XIV of the National Objectives and Directive Principles of State Policy, Articles 2(1) & (2), 8A, 28(1), (3b), & (12), 29(1), 36, 38(2), 42 and 44(c) of the Constitution of the Republic of Uganda 1995.
There are certainly many who hope the Uganda Constitutional Court will look to the prestigious Constitutional Court of South Africa for guidance in deciding these issues, although unlike the South African Constitution, the Uganda Constitution does not have an explicit provision protection sexual orientation.
[H/T Tony Tate]
[Image of Uganda Coat of Arms via]
Wednesday, March 5, 2014
The World Justice Project released its Rule of Law Index 2014, a report that "measures how the rule of law is experienced in everyday life in 99 countries around the globe, based on over 100,000 household and 2,400 expert surveys worldwide."
Adherence to the rule of law is assessed using 47 indicators organized around eight themes: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.
The report ranks the U.S. 19th out of 99 countries worldwide, and 13th out of 24 in the Americas. We got our worst scores for "accessibility and affordability" in the civil justice system, and "no discrimination" in the criminal justice system. High points included absence of corruption (across the board, except that "no corruption in the legislature" got a relatively low score), absence of civil conflict, and absence of crime.
Monday, January 27, 2014
Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali. Al Jazeera reports here; BBC here; the Guardian here; Reuters here.
According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion. Moreover, it guarantees equality between men and women and protects women's rights.
The new constitution divides executive authority between a prime minister and president. Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Monday, November 18, 2013
In its routine order list today, the Court's list of "MANDAMUS DENIED" included "13-58 - IN RE ELECTRONIC PRIVACY INFORMATION CENTER."
The petition for writ of mandamus and prohibition or writ of certiorari was filed by the Electronic Privacy Information Center and essentially sought review of an Order from the Foreign Intelligence Surveillance Court. The order redacts the names of the parties from whom the "tangible things" are sought, but the petition describes the order as compelling "Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers."
As one of its Questions Presented, the petition stated:
Whether the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority to authorize foreign intelligence surveillance, under 50 U.S.C. § 1861, when it ordered Verizon to disclose records to the National Security Agency for all telephone communications “wholly within the United States, including local telephone calls.”
The import of the Supreme Court's denial is both trivial and momentous. On the one hand, there is little if anything to be read into the Court's refusal to exercise its highly discretionary power to grant a petition for a writ as it does in 1% of cases. On the other hand, there is something to be inferred about the Court's interest in and willingness to supervise the unusual FISA given constitutional rights.
But the Court's failure to accept the case certainly does not mean the underlying issues will be so easily dispatched.
Wednesday, October 2, 2013
Who to blame for the lapse of appropriations, also known as the government "shutdown"?
Over at Washington Post, Dylan Matthews argues
it's James Madison's fault. This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51. And that disease is rapidly getting worse.
Matthews contrasts the situation with Great Britain:
while it is clear in the U.K. who is to blame for poor economic performance, it's far more difficult for American voters to sort out who's responsible. So they just hold to account whoever they get to vote on first. That leads to more or less random shifts in sentiment, with divided government and ensuing deadlock and crises, which makes assigning blame and holding members to account even more difficult.
Matthews isn't the only one over at WAPo holding up the UK as exemplar. Max Fisher explains that "Australia had a government shutdown once. In the end, the queen fired everyone in Parliament." He ends with this arch interrogatory: "Maybe, if we ask nicely, Britain will take us back?"
Sunday, September 29, 2013
It's worth comparing two views of the National Security Administration (NSA) and its searches.
First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation." Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations." Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:
They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?
Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata. They often rely on anonymous sources discussing classified information. Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even
after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.
Tuesday, September 3, 2013
Joanna Chiu writes at The Atlantic that Chinese President Xi Jinping's recent comments in support of legal reform have reignited a debate over constitutionalism and constitutional reform in the country. ("Reignited," because the government put a stop to those discussions when it imprisoned Liu Xiaobo and interrogated others in response to a manifest, "Charter 08," by a group of intellectuals calling for constitutionalism and restrained Party power.) Still, she says, any push for constitutionalism or constitutional reform still gets heavy push-back from the government. And an internal Party memo she cites calls for the eradication of "seven subversive currents" in Chinese society; those include "Western constitutional democracy," universal human rights values, media independence, and civic participation.
Chiu quotes a Shanghai lawyer to summarize the problem:
[The constitution] looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases. Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.
As for the government's reaction to talk about constitutionalism and reform, this anecdote is telling:
Nevertheless, calls for China to adhere to the 1982 constitution remain. In December, Beijing University professor Zhang Qianfan published "A Proposal for Consensus Reform," co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter. The proposal suggested setting up a review committee within the National People's Congress as a first step to give the constitution real power. But the article, which was posted on Zhang's personal blog and the Beijing University Law School website, was soon deleted without explanation.
Sunday, August 18, 2013
Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists. The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law. We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.
Bowden surveys some of the legal landscape and concludes that drone attacks are legal. But:
Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.
He also quotes John Yoo on the relative legality of drone attacks:
I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . . Because I think the ultimate deprivation of liberty would be the government taking away someone's life. But with drone killings, you do not see anything, not as a member of the public. You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees. It's kind of antiseptic. So it is like a video game; it's like Call of Duty.
Saturday, August 10, 2013
As we think about surveillance of electronic communication in the United States, it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens. Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations.
Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.
Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36). The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.
Tuesday, July 23, 2013
The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem. The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.
The case will likely go (back) to the Supreme Court, this time on the merits. This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.
The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel. The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."
Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel. President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.
Zivotofsky was born in Jerusalem to U.S. citizens. His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused. The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.
The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries. The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone. (It found original intent inconclusive, however.)
It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.
The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here. The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy. The court said that this interfered with the President's power to recognize foreign countries.
The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder. The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.
(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)
Judge Tatel, concurring, came to the same conclusion, but started with the passport power. Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.
July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, June 20, 2013
The United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had refused to review en banc, and which conflicted with a Sixth Circuit opinion.
The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech. In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that
the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.
He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.
The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs. The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite. Instead, although the lines could be difficult to draw, the Court held that
the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.
The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia. Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues. He criticizes the majority's distinction between central and not, but also finds that there is no coercion. He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject." Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable." But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument: "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons." More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3.
Friday, May 3, 2013
The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:
in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.
New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion. The court's majority stated:
The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.
Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions. The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments. But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding.
Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.
As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.
While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded
The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.
For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.
May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Monday, April 22, 2013
The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.
Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:
JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.
Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.
Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.
David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:
MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -
It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,
JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .
There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.
The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.