Monday, June 2, 2014

Carol Anne Bond Prevails in United States Supreme Court: Court Avoids Treaty Power Ruling

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.

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Nations in green are signatories to
Chemical Weapons Convention via

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)

Friday, May 23, 2014

Daily Read: Lithwick on Murphy on Scalia

Scalia bookDahlia Lithwick highlights the problematics of religion in her review in The Atlantic of the new biography of Justice Antonin Scalia, Scalia: A Court of One, by Bruce Allen Murphy. 

Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of  Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits. 

She is very complimentary of the biography:

In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

Indeed, she writes

Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.

From Lithwick's review, A Court of One is  a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."

May 23, 2014 in Books, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

Waldman's Biography of the Second Amendment

Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability.  That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.

Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.

Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment.  In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:

So how does legal change happen in America?  We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws.  Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine.  The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering.  The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government.  By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

May 20, 2014 in Fundamental Rights, Interpretation, News, Scholarship, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Sunstein on Epstein's Classical Liberal Constitution

Cass Sunstein, writing over at the New Republic, called Richard Epstein's latest book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, "passionate, learned, and committed," "a full-scale and full-throated defense of his unusual [libertarian] vision of the Constitution," and his "magnum opus."  Sunstein also places Epstein at the center of Tea Party constitutionalism, "the man who made libertarians wrong about the Constitution."  "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy."

But Sunstein argues that Epstein is a "stranger in a strange land" in arguing about the Constitution--that he "is steeped not in American constitutional law but in Anglo-American common law."  According to Sunstein, Epstein's views are more moral than doctrinal or historical (and certainly not originalist), and that he's "playing Dworkin's game" of reading the text through a moral lens:

Epstein is a moral reader.  He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation.  Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one.  Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires.  Of course other people think differently.  There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of "restoring" the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.

May 20, 2014 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

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voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

May 19, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fourth Amendment, Interpretation, Jurisdiction of Federal Courts, Opinion Analysis, Reproductive Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Abe to Reinterpret Japan's Pacifist Constitution

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.

We posted on the issues hereThe Financial Times covered Abe's plan here; The Christian Science Monitor covered it here.

May 13, 2014 in Comparative Constitutionalism, International, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Daily Read: NYT Editorial on Constitutionalizing Police Surveillance

With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey  and federal litigation in New York, is no longer viable.

An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:

500px-Spy_silhouette_document.svgThis problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.

Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.

The editorial recommends that the city agree

to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.

 

April 17, 2014 in Criminal Procedure, Current Affairs, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

A Conversation with the Chief Justice of the South African Con Court

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.

Cohen, a contributor to U.S. News & World Report and The Huffington Post, is a former foreign law clerk to Chief Justice Mogoeng Mogoeng, whom he interviewed for this piece.

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.

April 15, 2014 in Comparative Constitutionalism, International, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Daily Read: Deven Desai on Data Hoarding and Associational Freedom

"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits."  What should the constitutional limits be?  And what is their source?  In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai  (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."

Deven_desai-tu-websiteDesai argues:

The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties.  The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.

[footnotes omitted].

Ultimately, Desai contends that "pervasive surveillance turns us into sheep."  But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake.  Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."

Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.

April 7, 2014 in Association, First Amendment, Fourth Amendment, Interpretation, Privacy, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Eleventh Circuit Invalidates Florida's Attempt to Remove Voters from Rolls

The Eleventh Circuit's opinion in Arcia v. Florida Secretary of State, Detzner concludes that Florida's program to remove "suspected non-citizens" from the voter rolls in 2012 violated Section 8(c)(2)(A) of the National Voter Registration Act (the 90 Day Provision) which requires states to “complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.” 42 U.S.C. § 1973gg-6(c)(2)(A).

While the case rests on an issue of statutory application, it raises two constitutional concerns.

800px-Ferdinand_de_Soto_Florida_map
Ferdinand DeSoto's Map of "Florida"

First, there are Article III concerns of standing and mootness, with the Secretary of State arguing the court should not exercise jurisdiction over the matter.  The standing argument as to the individual plaintiffs focused on the lack of "injury in fact," but the court found that they were directly injured when they were wrongly identified as noncitizens, even though they were not ultimately prevented from voting.  Additionally, they had standing to challenge Florida's second attempt to remove voters by showing "imminent injury."   The standing argument as to the organization plaintiffs  -- Florida Immigration Coalition, Inc., The National Congress for Puerto Rican Rights, and 1199SEIU United Healthcare Workers East - - - was resolved by the court's conclusion applying both a diversion-of-resources theory and an associational standing theory.

The court likewise rejected the mootness argument.  Although the 2012 election had certainly passed, the court found that the situation fit squarely within the “capable of repetition, yet evading review” exception to the mootness doctrine.  It reasoned that the challenged action fit both prongs of the test: the action in its duration was too short to be fully litigated prior to cessation or expiration; and there is a reasonable expectation that the same complaining party will be subject to the same action again.

The other constitutional aspect of the case involved the interpretation of the federal statute's 90 day provision itself:

We reject Secretary Detzner’s attempts to have us decide today whether both the General Removal Provision and the 90 Day Provision allow for removals of non-citizens. Certainly an interpretation of the General Removal Provision that prevents Florida from removing non-citizens would raise constitutional concerns regarding Congress’s power to determine the qualifications of eligible voters in federal elections. Cf. Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___, 133 S. Ct. 2247, 2257 (2013) (“Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”). We are not convinced, however, that the Secretary’s perceived need for an equitable exception in the General Removal Provision also requires us to find the same exception in the 90 Day Provision. None of the parties before us have argued that we would reach an unconstitutional result in this case if we found that the 90 Day Provision prohibits systematic removals of non-citizens. Constitutional concerns would only arise in a later case which squarely presents the question of whether the General Removal Provision bars removal of non- citizens altogether. And before we ever get that case, Congress could change the language of the General Removal Provision to assuage any constitutional concerns. With this in mind, we will confine our ruling to apply to the plain meaning of the 90 Day Provision and decline Secretary Detzner’s invitation to go further.

The panel opinion, written by Judge Beverly Martin, was not unanimous.  While Judge Adalberto Martin joined the opinion, Judge Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by designation, wrote a very brief dissent, simply citing the two federal district court cases on the issue.

April 2, 2014 in Courts and Judging, Fifteenth Amendment, Fundamental Rights, Interpretation, Mootness, Opinion Analysis, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Ninth Circuit on the Equal Protection Rights of Immigrants in Hawai'i's Health Program

In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge.  The court reversed the preliminary injunction entered by the district judge.

There are several layers of complexity in the case.  There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.

Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages.   As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option.  The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant.  The "COFA aliens" are in the third category of state option.  At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded.  It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.

800px-1883_U.S.G.S._Map_of_the_Hawaiian_Islands_-_Geographicus_-_Hawaii2-USGS-1883
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent.  As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review."  In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review."  What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction?  Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."

Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.  

Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice. 

Hawaii songsHe does note:

I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.

While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.

April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 26, 2014

Oral Arguments in Wood v. Moss: The Complaint by the Anti-Bush Protestors

At the heart of this case is a very simple complaint: During a campaign stop by then-President Bush in Portland, Oregon, the Secret Service treated anti-Bush protestors differently from pro-Bush demonstrators, relocating the former while allowing the latter to remain. 

But the complaint raises a host of legal issues that ricocheted through the oral arguments {transcript} in Wood v. Moss at the United States Supreme Court today.

Portland_No_war_pdx
image from later protest in Portland via

The first issue is whether the complaint satisfied Ashcroft v. Iqbal, with Chief Justice Roberts specifically referring to the opinion during the oral argument of Steven Wilker, representing the Respondents, who were the protestors:

In Iqbal, and just quoting here from page 681, the Court goes on to consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement, and they go on to say, but given more likely explanations, they do not plausibly establish this purpose.

Roberts returned to Iqbal, stating that the Government's alternative explanation in its motion to dismiss the complaint "doesn't have to be so compelling.":

It simply has to be more likely, is the quote from Iqbal on 681, and it has to be an obvious alternative explanation. And that's enough, no matter what you've alleged.

There was certainly some concern expressed that without Iqbal, the district judge might have fewer "weapons" available to curb discovery, but there was also not uniform preoccupation with Iqbal, with Justice Breyer posing a hypothetical about discovery and saying "Forget Iqbal for the moment."

Yet another procedural barrier discussed by the Court is the doctrine of qualified immunity, requiring that the constitutional infringement be "clearly established" at the time it occurs in order to hold government agents accountable. The Government's best case in this regard is Reichle v. Howards, which counsel mentioned repeatedly, decided in 2012, which held that Secret Service agents had qualified immunity and rejected the claim of retaliatory arrest for a man at a Dick Cheney shopping mall appearance.

But there seemed to be an "aha" moment for Justice Scalia - - - who had previously accused the attorney for the government, Ian Gershengorn, Deputy Solicitor General, for not sufficiently raising such arguments - - - during Wilker's argument.  Scalia asked " how can it be  clearly established if we have never held that there is a Bivens cause of action for a First Amendment violation? We've never held that, have we? How can you possibly say that the violation here is clearly established."

MR. WILKER: Well, I think it's different to say whether or not there is a remedy for the violation as to whether the violation was clearly established.

JUSTICE SCALIA: Well, okay.

MR. WILKER: The violation was clearly established. Whether or not there is a remedy for that violation under Bivens - - -

JUSTICE SCALIA: That's a good point.

MR. WILKER:  - - - is a different question.

JUSTICE SCALIA: That's a good point.

Yet Scalia might not be convinced that there would actually be a First Amendment violation, given his repeated references to the Fourth Amendment in which motivation should not be considered. 

At several points, the oral argument did focus on the question of viewpoint discrimination under the First Amendment, such as in the Deputy Solicitor's exchange with the Justice Ginsburg:

JUSTICE GINSBURG: Mr. Gershengorn, suppose it's originally set up by the police, the motorcade is coming down, each side has equal access. Then the Secret Service comes along and said: Clear the anti­Bush demonstrators. Suppose that, that ­­ those were the facts. Would there be a valid Bivens claim?

MR. GERSHENGORN: Your Honor, the question would depend on whether there was a valid security rationale. I think in the context of a motorcade ­­

JUSTICE GINSBURG: The rationale is it's more likely that the people who are against the President would be harmful to him than the people who are for him.

Prätorianer
Roman Praetorian Guard via

Yet whether this case will be decided on the First Amendment issues - - - or more properly, whether the Court will decide that the First Amendment issue can be decided by the lower courts in spite of Iqbal and the qualified immunity doctrine - - - is balanced between two concerns expressed in the oral arguments. 

On the one hand, there is a concern for ability of the Secret Service to make security decisions to protect the President without being subject to second-guessing by possible plaintiffs and the courts themselves. 

On the other hand, there is the concern that there might develop a "Praetorian Guard" - - - as Justice Breyer stated - - - and that the trampling of First Amendment rights on the basis of viewpoint might be accepted.

As one of the cases on this Term's heavy First Amendment docket, its importance may be overshadowed, but it should not be underestimated.

March 26, 2014 in First Amendment, Fourth Amendment, Interpretation, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

Third Circuit on Pennsylvania's Funeral Director Law: Mostly Constitutional

Largely reversing a district judge's opinion that had found various provisions of Pennyslvania's Funeral Director Law unconstitutional on various grounds, the Third Circuit opinion in Heffner v. Murphy upholds the law except for its restriction on the use of trade names as violative of the First Amendment.

One key to the panel's decision is that it surmised that the district judge's conclusions regarding the constitutionality of Pennsylvania's Funeral Director Law (FDL), enacted in 1952, "stem from a view that certain provisions of the FDL are antiquated in light of how funeral homes now operate."  But, the Third Circuit stated, that is not a "constitutional flaw."

Anna_Ancher_-_A_Funeral_-_Google_Art_Project
"A Funeral" by Anna Archer via

The challenged statutory provisions included ones that:

(1) permit warrantless inspections of funeral establishments by the Board;
(2) limit the number of establishments in which a funeral director may possess an ownership interest;
(3) restrict the capacity of unlicensed individuals and certain entities to hold ownership interests in a funeral establishment;
(4) restrict the number of funeral establishments in which a funeral director may practice his or her profession;
(5) require every funeral establishment to have a licensed full-time supervisor;
(6) require funeral establishments to have a “preparation room”;
(7) prohibit the service of food in a funeral establishment;
(8) prohibit the use of trade names by funeral homes;
(9) govern the trusting of monies advanced pursuant to pre-need contracts for merchandise; and
(10) prohibit the payment of commissions to agents or employees.

The constitutional provisions invoked - - - and found valid by the district judge - - - included the Fourth Amendment, the "dormant" commerce clause, substantive due process, the contract clause, and the First Amendment, with some provisions argued as violating more than one constitutional requirement.

In affirming the district judge's finding that the trade names prohibition violated the First Amendment, the Third Circuit applied the established four part test from Central Hudson Gas & Electric Corp. v. Public Service Commission regarding commercial speech and found:

The restrictions on commercial speech here are so flawed that they cannot withstand First Amendment scrutiny. Indeed, the District Court correctly identified the pivotal problem concerning the FDL’s proscription at Central Hudson’s third step: by allowing funeral homes to operate under predecessors’ names, the State remains exposed to many of the same threats that it purports to remedy through its ban on the use of trade names.  A funeral director operating a home that has been established in the community, and known under his or her predecessor’s name, does not rely on his or her own personal reputation to attract business; rather, the predecessor’s name and reputation is determinative. Nor does a funeral home operating under a former owner’s name provide transparency or insight into changes in staffing that the Board insists is the legitimate interest that the State’s regulation seeks to further.

 [citation omitted]

ConLawProfs looking for a good review or even a possible exam question, might well take a look at the case.  It also seems that the Pennsylvania legislature might well take a look at its statutory scheme, which though largely constitutional, does seem outdated.

February 20, 2014 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Dormant Commerce Clause, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

Federal District Judge Declares Virginia's Same-Sex Marriage Ban Unconstitutional

Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.

Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny.  Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and  "responsible procreation" coupled with "optimal child rearing" are not satisfactory.  The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:

This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.

711px-1848_Greenleaf_Map_of_Virginia_-_Geographicus_-_Virginia-greenleaf-1848Judge Allen's equal protection analysis is substantially shorter and makes the articulates the application of rational basis scrutiny even more explicit:

Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . . 

The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.

Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies.  Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia.  Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal."  (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause).  Others may contest that there can be "no serious doubt" that marriage is a fundamental right. 

Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions:  Bourke v. Beshear from the Western District of Kentucky;  Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed). 

Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit. 

But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.

[image: 1848 map of Virginia via]

February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Friday, January 24, 2014

Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban

 The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support)  in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.  

Herring-aug2The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.

The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8.   Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8.  When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal.  Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful.  And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.

The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.

On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute.  The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits."  (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).

Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.

Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it.  But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.

January 24, 2014 in Current Affairs, Due Process (Substantive), Federalism, Interpretation, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

Scholarship Matters: Steve Sanders, The Right to "Stay Married," and Obergefell Opinion

In his opinion granting a final injunction in Obergefell v. Kasich, federal Judge Timothy Black addressed a particular enforcement of Ohio's limitation of marriage to opposite sex couples.   He also cited and relied upon an interesting conceptualization put forth by Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 Mich. L. Rev. 1421 (2011), available on ssrn. 

SandersAs the title indicates, Sanders argues that an individual who legally marries in his or her state of domicile, then migrates to another state, has a significant liberty interest under the 14th Amendment’s Due Process Clause in the ongoing existence of the marriage, as conceptually and doctrinally distinguishable from the constitutional “right to marry.”

Recall that the facts in Obergefell are especially sympathetic: one of the partners was a hospice patient and the relief requested regarded the martial status and surviving spouse to be recorded on the death certificate.  As NPR reported, the couple "chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway.   And recall also that Judge Black's preliminary injunction opinion last July was one of the first after the Court decided United States v. Windsor, declaring section 3 of DOMA unconstitutional, and used Justice Scalia's dissent as part of the rationale for expanding Windsor.

Although Judge Black's preliminary injunction opinion certainly considered the effect of the out-of-state marriage, in the permanent injunction opinion, Judge Black constitutionalizes this conception:

In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.

The footnote to this passage credits Steve Sanders article:

The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.

In the text of the opinion, Judge Black then quotes Sanders' article as stating, "In identifying the right to remain married as fundamental, Professor Sanders points out that the “[l]aw favors stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.”

There is much talk about whether and when legal scholarship matters.  In our new "Scholarship Matters" series, we'll continue to note incidents of scholarly influence on legal doctrine.  

January 2, 2014 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Family, Fourteenth Amendment, Interpretation, Opinion Analysis, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Federal District Judge Upholds Most of New York's SAFE Act Against Second Amendment Challenge, Striking Some Provisions

In an opinion rendered on December 31, Judge William M. Skretny declared several provisions unconstitutional but upheld most of New York's SAFE Act in New York State Rifle and Pistol Association v. Cumo

Judge Skretny, Chief Judge of the United States District Court for the Western District, sitting in Buffalo, applied intermediate scrutiny under the Second Amendment,  drawing on the "post- Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court."  He concluded that the SAFE Act's definition and regulation of assault weapons and its ban on large-capacity magazines further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights.  However, he concluded that the seven-round limit did not satisfy intermediate scrutiny both on the governmental interest and the means chosen.

The plaintiffs also challenged ten specific provisions of the SAFE Act as void for vagueness and thus violative of due process:

  • “conspicuously protruding” pistol grip
  • threaded barrel
  • magazine-capacity restrictions
  • five-round shotgun limit
  •  “can be readily restored or converted”
  • the “and if” clause of N.Y. Penal Law § 265.36 g muzzle “break”
  •  “version” of automatic weapon
  • manufactured weight
  • commercial transfer

 The judge found three unconstitutional - - - the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) - - - concluding that these provisions were vague and "must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited."

The opinion also rejects the dormant commerce clause challenge to the provision of the SAFE Act that effectively bans ammunition sales over the Internet and imposes a requirement that an ammunition transfer “must occur in person.”  The government had argued that the challenge was not ripe given that the section does not go into effect until January 15, 2014, but Judge Skretny decided the question was one of mere "prudential" ripeness and that the claim should be decided.  Applying well-established dormant commerce clause doctrine, the judge found first that the SAFE Act did not "discriminate" against out of state interests and moving to the "balancing test" under Pike v. Bruce Church, Inc. (1970), the "incidental effects on interstate commerce" were not "excessive in relation to a legitimate local public interest."

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Judge Skretny's 57 page opinion is scholarly and closely reasoned with specific findings.  Yet the Second Amendment issues certainly reflect the fact that there are no established standard for judicial scrutiny of the regulations of the "right to bear arms.  Recall that the Fifth Circuit's use of intermediate scrutiny in NRA v. AFT (regarding a federal restriction applying to persons less than 21 years of age)  and in NRA v. McCraw (regarding Texas restrictions also applying to persons less that 21 years of age) are both being considered on petitions for writs of certiorari by the United States Supreme Court.   Sooner or later, some sort of analytic framework for deciding Second Amendment issues will be established by the Court.  Until then, federal judges are left to navigate what Judge Skretny called the "vast terra incognita" of Second Amendment doctrine.

[image via]

January 2, 2014 in Courts and Judging, Dormant Commerce Clause, Due Process (Substantive), History, Interpretation, Opinion Analysis, Ripeness, Second Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Survey of Recent Commentaries on the Religious Rights of Corporations in the Context of the ACA

With Hobby Lobby (and Conestoga Wood) headed to the United States Supreme Court, there's more and more commentary on the issue of whether a for-profit secular corporation, or its "owners" has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause sufficient to be exempted from compliance with the ACA's so-called contraception mandate requiring most employers to provide employees with health insurance that includes contraception.

Interestingly, after the grant of certiorari, some news reports headlined the religiousity of corporations aspect while others headlined the ACA contraception provision. 

The issue has generated many commentaries which often take very polarized positions.  Here's a round-up:

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*     Garrett Epps' Hobby Lobby and the New 'Alienable' Rights in The Atlantic argues that "market triumphalism" is at the heart - - - and will determine - - - cases such as Hobby Lobby.  “In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder.”   The abstract “inalienable” framework of rights in the Constitution has been transformed into rights as  “assets”  that can be treated as property and owned by corporations, especially those that are assumed to “create” the jobs encompassing the rights being asserted by the individuals.  "The employees have no right to complain; they sold their rights on the free market."

*    Richard Garnett's The Righteousness in Hobby Lobby’s Cause in the LA Times argues that Hobby Lobby should be praised for maintaining and supporting responsible corporate ethics through religious commitment. "Like millions of religious believers and groups," these corporations "reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work."  At  "the heart"  of these cases "is the straightforward argument that federal law does not require us to 'check our faith at the door' when we pursue vocations in business and commerce."

*     Linda Greenhouse's  Doesn’t Eat, Doesn’t Pray and Doesn’t Love, in NY Times contends that the conflict is not really over religion but part of the continuing culture war surround sex.  “To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby. While most Americans surely share this view, given the personal choices they make in their own lives, many nonetheless find it uncomfortable to acknowledge.”

 *    Dahlia Lithwick's Un-People over at Slate argues that the "conservative crusade to declare everything a “person”—corporations, fertilized eggs—will have disastrous consequences."  Lithwick notes the extension from Citizens United: "Corporate Personhood is back! And this time, it’s got God on its side.”  She predicts the consequences: "If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws."

*    David Catron's SCOTUS, Hobby Lobby, and Media Practice over at The American Spectator argues against the "mainstream media" characterizations:  “Those Americans still naïve enough to rely on establishment news outlets for information on current events are being told that Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are part of a sinister conspiracy to restrict access to birth control, endow corporations with religious rights, and escalate the 'war on women.'" Instead, the main question should be this: "Can the government strip individuals of their religious liberties simply because they own a controlling interest in a corporation?"

*    Sally Cohn's When Religion and Liberty Collide over at the Daily Beast draws on originalist interpretations of the First Amendment's religion clauses that  "freedom *from* religion" is central.  She contends that "the settlers who came to America wanted to express their own religious beliefs, but an equal if not greater motivation was escaping the reality of religious tyranny embedded in government," and to "put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us."

*    David Skeel's Corporations and Religious Freedom in WSJ argues that even if corporate religious rights are recognized, that doesn't mean there will be a flood of cases.  Corporations will need to meet the sincerity requirement "and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not."

*    Clarence Page's Law Protects All Faiths, Not All Behavior Op-Ed in The Chicago Tribune discusses the legal landscape in accessible terms, ultimately relying upon the belief/practice distinction as articulated  "in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young."

*     Angelo Young's The Same Religious Conviction That Has Hobby Lobby Challenging Obamacare is Also Why Its Full Timers Start at $14 an Hour with Evenings (and Thanksgiving Off)  in International Business Times argues exactly what its title captures.  Focusing on Hobby Lobby, the article has an interview with David Green, the 73-year-old founder, including Green's comments about salary increases because "Our idea is that we should care about our people. It’s just a basic Christian do-unto-others idea."

*    Amanda Marcotte's Christian Conservatives Have Perfected Playing the Victim Card in Salon (via alternet) argues that by the controversy is fueled by conservatives "redefining “religious freedom” to mean its opposite."  She says  the "hope is that by repeatedly using the term “religious freedom” when they mean “giving the Christian right power to impose their faith on others,” they can eventually drain the phrase of all its meaning and finally, after decades of fighting secularism, make it easier for the religious right to strip away individual protections for religion.”

*    Megan McArdle's A Fight Over Contraception Won’t Help Obamacare Op-Ed in Bloomberg contends that the Obama Administration should "pick its battles carefully."  She argues that if the ACA is to be " viable for the long term" it will "need the support of folks like Hobby Lobby."  

We previously discussed
Ruthann Robson's Puzzling Corporations: The Affordable Care Act and Contraception Mandate originally published over at Jurist, and
Marci Hamilton's Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible, originally published over at Justia.

[image via]

ADDITIONS:

Bill Keller, Conscience of a Corporation, Op-Ed Column in NYT (February 13, 2013).

 

 

 

Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpufwere discussed on conlawprof previously

December 13, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Free Exercise Clause, Gender, Interpretation, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Monday, December 9, 2013

Avery and McLaughlin on the Filibuster and Influencing the Judiciary

Michael Avery and Danielle McLaughlin, authors of The Federalist Society: How Conservatives Took the Law Back from Liberals, write over at the ACS Blog that the Democrats' recent move to invoke the nuclear option now gives them a chance to respond to a decades-long movement by conservatives and the Federalist Society to fill the federal bench with conservative judges.

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In our book, we analyze how these judges and others have responded to the arguments of Federalist Society members to move the law to the right in a variety of substantive areas. . . .

We hope the recent Senate Rules change will become an important step in restoring balance to the federal bench.  We acknowledge that this rule change might eventually come back to haunt Senate Democrats.  Either way, it was past time for the president and the Democrats in the Senate to realize that they have to play hardball with respect to judicial appointments.

December 9, 2013 in Books, Interpretation, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Daily Footnote: Redacted Definitions in FISA Court Opinion

Among the materials released today as we discussed earlier, is the 87 page opinion by the Presiding Judge of the Foreign Intelligence Surveillance Court, again difficult to name or cite given that the usual caption material is redacted:

Page 1 FISA

 

But the opinion's footnote 27 with the portions redacted - - - and not redacted - - - does deserve special notice:

Fn 27

"For ease of reference, the term XXXXXXXXXXXXX   is used to mean  XXXXXXXXXXXXXX." 

 

November 19, 2013 in Courts and Judging, First Amendment, Fourth Amendment, Interpretation, News | Permalink | Comments (0) | TrackBack (0)