Thursday, April 17, 2014
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:
This 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.
Tuesday, April 15, 2014
Matt Ford writes over at The Atlantic that there's an irony in rancher Cliven Bundy's land claim against the federal Bureau of Land Management, now brewing in Nevada. That's because the very state constitution that Bundy so forcefully defends (in the spirit of states' rights, state sovereignty, and the like) contains a "paramount allegiance" clause, enshrining federal supremacy right there in the document. Here it is, from Article I, Section 2, in the Declaration of Rights:
All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizens is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.
Ford explains that the clause originated in Nevada's first constitutional convention in 1863, and that state constitutional framers, overwhelmingly unionists, retained it in 1864.
Nevada isn't the only state with a Paramount Allegiance Clause. As Ford explains, Reconstruction-era state constitutions throughout the South had one. While most were dropped in subsequent revisions, some states, like Mississippi and North Carolina, still have it.
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.
Friday, April 11, 2014
The Eleventh Circuit ruled this week in Brown v. U.S. that a magistrate judge lacked authority to enter final judgment on a criminal defendant's motion to vacate his sentence.
The case revisits, but then dodges, the issue whether a magistrate's ruling on a motion under 28 U.S.C. 2255 violates Article III.
The court said that the Magistrate Act, 28 U.S.C. 636(c), which authorizes magistrates, with the consent of the parties, to enter a final judgment on any "civil matter," did not authorize a magistrate to enter a final judgment on a Section 2255 motion to vacate a sentence. While the court recognized a Section 2255 motion was a civil matter, it said that Section 2255 wasn't a "civil matter" for purposes of Section 636(c).
Why? According to the court, because to so conclude could result in a violation of Article III.
The court recognized that Section 636(c) is constitutional on its own--that is, that magistrates are constitutional in "civil matters." But it said that special problems with a magistrate ruling on a Section 2255 motion made Section 636(c) constitutionally suspect. In particular, when a magistrate enters a final judgment on a Section 2255 motion, that magistrate sits "in a quasi-appellate capacity, with the power to vacate the judgment the district court entered in the case." "It is axiomatic that non-Article III judges [magistrates] may not revise or overturn Article III judgments." Moreover, if a magistrate were to enter a final judgment on a Section 2255 motion, there's no procedure for district court review. Yet, "the authority of a district court to review the magistrate judge's decision, even if neither party invokes such authority, is essential to ensuring that Article III values are protected."
These problems aren't new. The Fifth Circuit recognized them, too, and in 2001 in U.S. v. Johnston ruled that a delegation of Section 2255 motions to a magistrate violated Article III. (Prof. Ira Robbins (AU/WCL) helpfully explains all this in this 2002 article in the Federal Courts Law Review. Both the article and Brown contain nice histories of magistrates in the Article III courts.)
But the Eleventh Circuit followed a different tack. Instead of ruling that the constitutional problems with this kind of delegation resulted in a violation of Article III, it avoided the constitutional question by ruling (stretching and straining) that Section 2255 motions aren't "civil matters" for the purpose of Section 636(c) delegations to magistrates, and therefore as a matter of statutory construction the magistrate lacked authority to enter a final judgment on the Section 2255 motion.
For Brown, all this means that the magistrate's final judgment on his Section 2255 motion is invalid, and that he'll have to start over and have an Article III judge, not a magistrate, rule on his motion.
The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.
The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.
Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006. Congress passed SORNA in July 2006. Cooper was charged with failing to register in 2012.
Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation. SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."
Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S. That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them. Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable." We posted on the case and Justice Scalia's concern here.
But the Third Circuit rejected Cooper's claim. The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:
In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority. This is all that is required under the modern nondelegation jurisprudence.
The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."
The D.C. Circuit ruled today in Communities for a Better Environment v. EPA that a group of environmental organizations lacked standing to sue the EPA for its failure to regulate carbon monoxide based on its impact on "public welfare" under the Clearn Air Act. In short, the court ruled that the plaintiffs couldn't demonstrate that the EPA's failure to issue secondary standards for carbon monoxide caused the effects of global warming that the plaintiffs complained about.
The ruling contrasts with Massachusetts v. EPA, where the Supreme Court ruled that a state had standing to challenge the EPA's denial of a petition asking the EPA to regulate carbon dioxide. The Court said that the state sufficiently demonstrated that it stood to suffer harms resulting from global warming (like loss of coastline from rising sea levels) if the EPA did not regulate carbon dioxide.
This case involved a different kind of regulation and a different air pollutant, but the same core theory of standing. The Clean Air Act directs the EPA to set secondary standards for one of six air pollutants (including carbon monoxide) at a level "requisite to protect the public welfare." The "public welfare" includes welfare of animals, the environment, and climate, among other things. (The Act also requires the EPA to set primary standards for the six air pollutants at a level "requisite to protect the public health," that is, human health.) The EPA decided in 2011 not to issue secondary standards for carbon monoxide, because the Agency determined that secondary standards for carbon monoxide were not needed to protect the public welfare--that standards for carbon monoxide wouldn't protect animals, the environment, or climate. The EPA issue primary standards for carbon monoxide, however.
The plaintiffs sued, challenging (1) the EPA's primary standards for cabon monoxide and (2) the EPA's decision not to set secondary standards.
In response to the government's motion to dismiss on the second claim, the plaintiffs argued that they had standing under Massachusetts v. EPA. The court disagreed, saying that the plaintiffs didn't demonstrate the connection between the EPA's decision not to set standards and the harm they alleged. The court explained:
But even assuming for the sake of argument that Massachusetts v. EPA grants standing for plaintiffs other than States, petitioners here have failed to establish the causation element of standing. Petitioners claim that EPA's decision not to set a secondary standard for carbon monoxide will worsen global warming and in turn displace birds that one of petitioners' members observes for recreational purposes. But petitioners have not presented a sufficient showing that carbon monoxide emissions in the United States--at the level allowed by EPA--will worsen global warming as compared to what would happen if EPA set the secondary standards in accordance with the law as petitioners see it. Moreover, citing and analyzing many scientific studies, EPA explained that carbon monoxide's effects on climate change involve "significant uncertainties."
The court also rejected the plaintiffs' claims against the primary standards on the merits.
Thursday, April 10, 2014
Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper. Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question. We posted here.
Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":
It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands. Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years. Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.
The Tenth Circuit remanded the case, and the district court is preparing for trial. We'll surely see this one again.
Wednesday, April 9, 2014
Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit. One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little Sisters case and, more recently, Notre Dame's case at the Seventh Circuit. (Those rulings were on injunctions against the accommodation pending appeal. Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit. In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal. The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.)
The other case, Sissel v. HHS, is less well known. It challenges the universal coverage provision, or the so-called individual mandate. Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause. But it originated in the Senate. Plaintiffs say it's therefore invalid.
Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases. That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees). Judge Rogers is also on the panel.
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.
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, April 4, 2014
Peter Beinart argues over at The Atlantic that the Court's ruling this week in McCutcheon--that aggregate limits on campaign contributions violate the First Amendment--could haunt the Republican Party. His claim: Over the long haul, McCutcheon will contribute to the Republican Party's reputation as the party of plutocrats.
From the piece:
A CNN poll this February found that . . . Americans . . . said Republican policies favored the rich over the middle class by a whopping 46 points.
The Supreme Court has now made overcoming that reputation harder.
. . .
In the 1970s, a liberal Supreme Court fueled right-wing cultural populism. Today, a conservative Supreme Court is breeding left-wing economic populism. For the contemporary GOP, the danger of looking like the plaything of America's super-rich outweighs the benefits of increased support from America's super-rich. Even in the age of the Roberts Court, winning elections generally requires more than just raising more money. It requires winning more votes.
Wednesday, April 2, 2014
A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits. The five-justice majority ruled that the limits violated the First Amendment.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.
Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties. Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate. (The Court said that base limits are still constitutional, as are disclosure requirements.)
The majority said that under aggregate limits
A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.
It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.
The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.
The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.
Tuesday, April 1, 2014
In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage. Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately. And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle).
Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were."
And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:
Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.
But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service. As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct." Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway." This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms." One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership."
But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments? Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others.
Monday, March 31, 2014
Loyola University Chicago School of Law has announced its Fifth Annual Constitutional Law Colloquium, set for November 7 and 8, 2014. This is an outstanding national colloquium--a terrific opportunity to present, discuss, and get feedback on your work--that just keeps getting better and better.
Registration is open until June 16, 2014. Organizers will select abstracts (150 to 200 words) on a rolling basis and hope to include all who submit. (Of course, you can attend without presenting.)
Here's the official announcement:
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This is the Fifth Annual Loyola colloquium and brings together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas and invaluable opportunities for informed critiques. Presentations will be grouped by subject matter.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millenium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants are expected to pay their own travel expenses. Loyola will provide facilities and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
There's more information at the Colloquium web-site, or contact the organizers or the Administrator:
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, firstname.lastname@example.org
Professor Alexander Tsesis, email@example.com
Professor Mike Zimmer, firstname.lastname@example.org
Program Administrator Heather Figus, ConstitutionLaw@luc.edu
Friday, March 28, 2014
A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange. We posted on those cases here. In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange. This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy. So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).
That rule is what's at issue in these cases. The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges). Jason Millman over at the WaPo's Wonkblog explains the significance:
The subsidy question is central to the future survival of the law. Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.
About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."
The D.C. Circuit is the first appellate court to hear arguments in these challenges. Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote. The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.
Monday, March 24, 2014
Conor Friedersdorf writes over at The Atlantic that media coverage of the dispute between Senator Dianne Feinstein and the CIA over the Agency's spying on Congress wrongly puts concerns about CIA oversight on par with concerns about Senate investigations in the separation-of-powers calculus.
Recall that Senator Feinstein recently criticized the CIA for spying on the Senate Intelligence Committee. The CIA responded that Committee staff improperly obtained CIA material in its investigation of CIA detention and interrogation policies. Both matters are now at the DOJ.
Friedersdorf argues (persuasively) that media coverage of the competing claims wrongly puts them on par. He says that the Senate Intelligence Committee is supposed to investigate the CIA (it is), and that even if Committee staff obtained CIA information, it was information that the CIA was supposed to turn over anyway. The real transgression is not Committee oversight; it's the CIA's spying on Congress.
What vexes me about how this dispute is being covered . . . is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like transgressions. If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any surveillance in the U.S., snooped on our legislature. That's a transgression against our constitutional framework.
At the same time:
Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was justified in withholding torture documents? Senate staffers committed no great sin in getting documents wrongly denied them.
Sunday, March 23, 2014
Jon B. Eisenberg, counsel, along with Reprieve US, for Shaker Aamer and Emad Hassan, Guantanamo detainees, writes over at Jurist.org that force-feeding detainees at Guantanamo is akin to the medieval form of torture called "pumping," or the water cure. Eisenberg makes the case that force-feeding is not "reasonably related to legitimate penological interests," the standard under Turner v. Safley, because the government force-feeds prematurely, long before detainees are at risk of death or great bodily harm. He writes that there are "obvious, easy alternatives," and that force-feeding is an "exaggerated response."
Recall that the D.C. Circuit ruled earlier this year that federal courts could hear Aamer's habeas claim--a claim not for release, but rather against his conditions of confinement. This was a huge victory for Guantanamo detainees: it was the first time the court said that they could bring a habeas claim challenging their conditions of confinement.
But the court also ruled that Aamer was not likely to succeed on the merits of his claim. Eisenberg explains why that was wrong.
The government hasn't said whether it'll appeal the Aamer ruling. In the meantime, Eisenberg and Reprieve US are going forward with another claim against force-feeding, Hassan's.
Thursday, March 20, 2014
The Minnesota Supreme Court yesterday reversed a conviction for advising or encouraging another in committing suicide, ruling that the conviction violated the First Amendment. At the same time, the court remanded the case to determine whether the defendant "assisted" suicides in violation of Minnesota law.
The case, Minnesota v. Melchert-Dinkel, involved the defendant's prosecution and conviction for violation of Minnesota Stat. Sec. 609.215, which makes it illegal to "intentionally advise, encourage, or assist another in taking the other's own life." Melchert-Dinkel, posing as a depressed and suicidal young female nurse, responded to posts on web-sites related to suicide and encouraged two individuals, one in England and one in Canada, to take their own lives. Melchert-Dinkel gained the trust of the victims and then urged them each to hang themselves, falsely claiming that he (as she) would also commit suicide.
Melchert-Dinkel was charged with violating Minnesota's ban on advising or encouraging suicide. The trial court convicted him, specifically finding that he "intentionally advised and encouraged" both victims to take their own lives, and concluded that Melchert-Dinkel's speech was not protected by the First Amendment.
The Minnesota Supreme Court disagreed. The state high court said that the ban swept too broadly to meet strict scrutiny. In particular, "advise" and "encourage" could include "speech that is more tangential to the act of suicide and the State's compelling interest in preserving life," even "general discussions of suicide with specific individuals or groups."
The court rejected the state's argument that Melchert-Dinkel's speech was unprotected because it was "integral to criminal conduct." The court noted that suicide is no longer illegal in Minnesota, Canada, or the UK. With no underlying criminal conduct, the speech couldn't be integral to it.
The court also rejected the state's argument that Melchert-Dinkel's speech was unprotected incitement. That's because there was no underlying lawless action, imminent or not.
Finally, the court rejected the state's argument that Melchert-Dinkel's speech was unprotected "deceit, fraud, and lies." The court (citing Alvarez) said that there was no such exception to the First Amendment.
At the same time, the court ruled that the portion of the statute that banned "assisting" another in taking his or her own life survived. The court remanded the case to the trial court to determine whether Melchert-Dinkel's actions constituted "assisting" in the suicides.
Wednesday, March 19, 2014
Judge Eric Melgren (D. Kansas) today ordered the federal Election Assistance Commission to add language to state-specific instructions on the federal voter registration form for Arizona and Kansas that would require voter registration applicants to show proof of citizenship.
Arizona and Kansas previously announced that they would adopt a two-tier registration system, one for state elections and one for federal elections, in response to the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc. Recall that in that case the Court ruled that the National Voter Registration Act, which requires states to "accept and use" a uniform federal form to register voters for federal elections, preempted an Arizona law that required state officials to reject any application for registration that wasn't accompanied by proof of citizenship. The NVRA federal form simply required applicants to aver, under penalty of perjury, that they satisfy state requirements for voter registration. The Court said that Arizona impermissibly required more.
Arizona and Kansas announced, in response to Inter Tribal Council, that they'd simply adopt a two-tiered system. That is, they'd continue to "accept and use" the federal form (without additional proof of citizenship) for registration for federal elections, and they'd use their own state form (with an additional requirement for documentary proof of citizenship) for state elections.
That seemed inefficient (among other things), to say the least.
Now, Judge Melgren's ruling, if upheld, might mean that Arizona and Kansas would ditch their efforts to create the two-tiered system, because they'd get what they want on the federal form--proof of each applicant's citizenship.
The ruling, if upheld, also invites other states to follow suit and get their own state-specific instructions on the NVRA federal form that would require additional documentary proof of citizenship. This could create hassles for registration through the federal form, even though a primary goal of that form was to make registration simpler. If many states did this, they could undermine the ease of registration that the NVRA was designed to promote.
The case, Kobach v. USEAC, grew out of Arizona's and Kansas's requests to the EAC to include state-specific instructions on the federal voter registration form that would require voter registration applicants in those states to show proof of citizenship. The states' requests came on the heels of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona, Inc.
The Court said that the NVRA preempted Arizona's proof-of-citizenship requirement, but it also said that a state could ask the EAC to add a proof-of-citizenship requirement on the state-specific instructions that accompany the NVRA federal form.
That's exactly what Kansas and Arizona did. The EAC declined, and the states sued, arguing that the EAC's decision violated the Administrative Procedures Act, among other things.
Judge Melgren agreed. He ruled that the adding the state-specific instructions on the NVRA federal form (to provide proof of citizenship) could be harmonized with the NVRA (and that the NVRA didn't preempt state law on this point):
But the NVRA does not include a similar clear and manifest prohibition against a state requiring documentary proof of citizenship. In fact, the NVRA does not address documentary proof of citizenship at all, neither allowing it nor prohibiting it. Therefore, the Court must find that the NVRA is silent on the subject. Because Congress has not addressed the same subject as the state law, there is no basis to determine that the NVRA has preempted Arizona or Kansas law on the subject of documentary proof of citizenship.
Moreover, Judge Melgren said that not allowing Kansas's and Arizona's requested instructions would raise serious constitutional questions--that is, whether the NVRA intrudes too much on state authority to set the qualifications of voters for state and federal elections under the Elections Clause. Judge Melgren wrote that requiring the EAC to include the requested state-specific instructions would avoid this question.
Tuesday, March 18, 2014
Alabama Supreme Court Chief Justice Roy Moore and Justice Tom Parker issued advisory opinions to the state legislature last week that said that the legislature's article-by-article approach to amending the state constitution is unconstitutional.
The opinions came after the legislature began an organized effort in 2010 to rewrite the state's 1901 constitution. That constitution is widely considered an outdated relic crafted to perpetuate white supremacy in the state. (The document still contains provisions for a poll tax and segregated schools. It also sharply limits home rule for local governments--so that local governments dominated by African Americans couldn't gain political power. But that's part of why the document is now so long, and so amended: In order to get anything done at the local level, the state has to change the constitution.) It's also quite long: with over 800 amendments, it's the longest constitution in the United States, and one of the longest in the world.
The constitution allows for amendment by way of the state legislature and Alabama voters. It also allows for a constitutional convention if the legislature and voters agree to hold a constitutional convention. Several efforts to overhaul the entire document have failed, however.
So the Constitutional Revision Commission, a panel formed in 2011, began an article-by-article rewrite.
Chief Justice Moore's and Justice Parker's advisory opinions said that the article-by-article approach was an unconstitutional side-step around the requirement for a constitutional convention in order to change the whole document. Those opinions appear to have chilled the rewrite effort--at least temporarily.