Constitutional Law Prof Blog

Tsesis on the History of the Declaration of Independence

Prof. Alex Tsesis (Loyola Chicago) joined me on Thursday for a talk on his book For Liberty and Equality: The Life and Times of the Declaration of Independence (Oxford 2012).  This was a terrific read; I highly recommend it.  

But first listen to him talk about it.  Here's the audio of our chat (about 20 minutes):

Tsesis Interview May 16

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Senate Judiciary Approves Srinivasan for D.C. Circuit

The Senate Judiciary Committee today unanimously approved Deputy Solicitor General Sri Srinivasan for a slot on the D.C. Circuit.  WaPo reports here.  We previously posted here, with links to backgrounds and profiles.

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The New Yorker, Anonymity, and Confidential Sources

What if the reporters' confidential sources were unknown even to the reporter?  Might this solve the problems that the Court struggled with more than 40 years ago in Branzburg v. Hayes?

The New Yorker has introduced a technological attempt to insulate the source and the reporter.  As The New Yorker explains its new concept, called "Strongbox" :

as it’s set up, even we won’t be able to figure out where files sent to us come from. If anyone asks us, we won’t be able to tell them.

A fuller explanation in the article by Kevin Poulson begins: "Aaron Swartz was not yet a legend when, almost two years ago, I asked him to build an open-source, anonymous in-box.

Of course, the government's technological abilities have also progressed since the grand jury inquiry of Branzburg.

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Force-Feeding at Guantanamo

The ACLU and 19 other organizations sent a letter this week to Secretary of Defense Chuck Hagel opposing the military's force-feeding hunger-striking detainees at Guantanamo Bay.  According to the ACLU, 29 detainees are currently being force-fed.  We previously posted on a ruling by New York's high court upholding the practice of force-feeing in New York prisons.

The military's standard operating procedures (SOP) on fasting and force-feeding changed just recently (published on Al Jazeera), loosening protections against force-feeding.  (The earlier SOP is here.)  Most notably, the recent changes to the SOP charge the military commander of the base, not a medical doctor, with determining who is a hunger striker.

Here's the ACLU's legal case against force-feeding, from this week's coalition letter to Secretary Hagel:

Force-feeding as used in Guantanamo violates Common Article 3 of the four Geneva Conventions of 1949, which bar cruel, humiliating and degrading treatment.  It also could violate the Detainee Treatment Act of 2005, which prohibits the "cruel, inhuman, or degrading treatment" of prisoners "regardless of nationality or physical location."  Indeed, a 2006 joint report submitted by five independent human rights experts of the United Nations Human Rights Council (formerly the U.N. Commission on Human Rights) found that the method of force-feeding then used in Guantanamo, and which appears to remain in effect today, amounted to torture as defined in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994.  The report asserted that doctors and other health professionals authorizing and participating in force-feeding prisoners were violating the right to health and other human rights, including those guaranteed by the International Covenant on Civil and Political Rights, which the United States ratified in 1992.  Those concerns were reiterated this month by the Office of the UN High Commissioner for Human Rights, the Inter-American Commission on Human Rights, the United Nations Working Group on Arbitrary Detention, and three UN Special Rapporteurs.

While the letter focuses on cruel, inhuman, or degrading treatment, there may be other problems with force-feeding, too.  For example, force-feeding may infringe on hunger-striking detainees' free speech.  But First Amendment claims by hunger-strikers in regular detention in the U.S. have not been successful; Guantanamo Bay detainees would almost certainly face even steeper First Amendment challenges in the courts.  There's also the right to refuse medical treatment.  As Michael Dorf (DorfonLaw.org) argues at jurist.org, "five Justices in [Cruzan v. Dir. Missouri Dep''t of Health] did say that they thought that competent adults have the right to refuse forced feeding, even if death will result."  But that runs up against Washington v. Harper, holding that prison officials could override a prisoner's objection to forcibly being administered medication, assuming it's in the prisoner's medical interest.

Anyway, as Dorf points out, some Guantanamo detainees might have a hard time even bringing a case.  Judge Kessler (D.D.C) dismissed a detainee force-feeding case in 2009, based on the jurisdiction-stripping provision in the Military Commissions Act of 2006.  That provision says,

Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The difference here is that some of the hunger-strikers now have been cleared for release--the U.S. just can't find a place to send them.  Those detainees are not "determined by the United States to have been properly detained as an enemy combatant or [are] awaiting such determination," and are not barred by 2241(e)(2) from bringing suit.

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Court Says Plaintiff Can Bring State Suit for Illegal Sale of His Car

The Supreme Court ruled today in Dan's City Used Cars, Inc. v. Pelkey that federal law does not preempt a plaintiff's state law claim against a towing company for the illegal sale of his car.  The ruling affirms the New Hampshire Supreme Court's ruling in favor of the plaintiff and settles a split among state high courts on the question.  Otherwise, the ruling doesn't break any new ground, and it's not a particular surprise.

The case arose when Dan's City towed Pelkey's car from his landlord's parking lot and later traded it away without compensating Pelkey.  (Pelkey was suffering with a serious medical condition for which he was later hospitalized, and thus left his car in the parking lot during a snow--a towing offense under the landlord's rules.)  Pelkey sued for wrongful sale (but not wrongful towing) under state law.  The lower state court said that the Federal Aviation Administration Authorization Act, FAAAA, preempted Pelkey's suit and dismissed the case.  (The FAAAA applies to motor carriers.)  The New Hampshire Supreme Court reversed, and this appeal followed.

The FAAAA preemption clause says,

[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.

In an opinion by Justice Ginsburg, the unanimous Supreme Court held that Pelkey's suit wasn't "with respect to the transportation of property," because it was based on the allegedly wrongful sale of his car after it was transported--that is, post-towing.  The Court said that this result is consistent with congressional purposes is enacting the FAAAA preemption clause.

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D.C. Circuit Strikes NLRB Notice-of-Rights Rule

A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights.  The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.

The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.

The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace.  Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA.  (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)

The rule says,

[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .

29 C.F.R. Sec. 104.202(a).  (Here's the single-page version of the notice poster.)  But the plaintiffs argued that this violated the NLRA and free speech.  The court agreed, concluding that the rule violated Section 8(a), which says:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."  

The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech.  Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.

The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities.  (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.)  The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.  

(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)

The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid.  But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.

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Louisiana Supreme Court Strikes State School Voucher Program

The Louisiana Supreme Court today ruled that the state's school voucher program violates the state constitution.  In particular, the court ruled that the voucher program tapped the constitutionally protected per pupil state fund for public education and that the legislature passed the funding mechanism in violation of state constitutional procedural requirements.

The ruling deals a fatal blow to this funding mechanism for the state's voucher program.  But the state could probably create a voucher program and fund it through a different budget mechanism (e.g., a regular line item, instead of the state's specifically reserved per pupil fund for public education).  The ruling thus puts the ball back in the governor's and legislature's court--to create a new mechanism for the voucher program, and to come up with the money to fund it.  (Here's Governor Jindal's statement in reaction to the ruling.)  Even if this happens, the ruling underscores the constitutional protection for separately allocated per pupil fund for public education in the state.

The ruling, Louisiana Federation of Teachers v. State of Lousiana, arose out of state constitutional challenges to the state's recently encacted voucher program.  That program diverted state funds separately allocated for public education (under the "minimum foundation program," or MFP) to private schools "on behalf of each student awarded a scholarship" under the voucher program.  The program came in two parts: Act 2 created the voucher program; and Senate Concurrent Resolution No. 99 approved the MFP line-item but diverted MFP funds to support Act 2 vouchers.

The court ruled that the provisions violated Louisiana Constitution Article VIII, Sec. 13(B), which requires the legislature to "fully fund the current cost to the state" of "a minimum foundation program of education in all public elementary and secondary schools," and the "funds appropriated shall be equitably allocated to parish and city school systems."  According to the court, Section 13(B) requires that MFP funds be used to support public education only, even if some of the students used to calculate the MFP base elected to go to private school.  In short, when Section 13(B) says that MFP funds "shall" be allocated to public schools, it means they shall be allocated only to public schools--and can't be diverted to private schools.

The court also ruled that SCR 99 violated Article III, Sec. 2(A)(3)(a), which says (in relevant part):

No new matter intended to have the effect of law shall be introduced or received by either house after six o'clock in the evening of the twenty-third calendar day.

After some analysis of "the effect of law," the court concluded that SCR 99 violated this provision, because it was introduced in both houses after the twenty-third calendar day of the regular session.  (The court ruled that it also violated a related provision, requiring a 2/3 vote after a certain date.  Ultimately the court noted that in the House it didn't even get a "majority of the members elected," as required by Article III, Sec. 15(G).)  

At the same time, the court ruled that the voucher package didn't violate the constitution's "one-object" rule, requiring each piece of legislation to deal with just one object.  The court said the legislation was indeed quite lengthy, but still it all went to the same general object--promoting school choice.

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Rosen Named CEO of National Constitution Center

The National Constitution Center has named Con Law Prof Jeffrey Rosen (GW) as its new president and CEO.  Rosen succeeds David Eisner, who stepped down in October 2012.

Here's more, from the Philadelphia Inquirer.

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New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

Yet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

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[image via]

Kansas Outlaws Federal Gun Laws

Kansas thumbed its nose at the federal government and its current and future gun laws recently in SB 102, the Second Amendment Protection Act, which declares federal gun laws unenforceable in the state.  

In particular, SB 102 says that the state legislature "declared" that firearms and accessories "manufactured commercially or privately and owned in Kansas and that remain within the borders of Kansas . . . have not traveled in interstate commerce" and therefore are not subject to federal regulation, including any federal registration requirement, under the Commerce Clause.  In short, the law seeks to insulate firearms and accessories that are made and kept only within the state from federal regulation under the Commerce Clause.  This reading of the Clause would deny the federal government authority to regulate activities that have a substantial effect on interstate commerce--a well settled congressional authority.  (The law also says that component parts imported from other states don't transform an otherwise Kansas-made firearm into an item in interstate commerce.)  To that extent, the law seems well tailored to test this long-standing aspect of congressional Commerce Clause authority--the power to regulate intrastate activities that have a substantial effect on interstate commerce.  If so, that's unlikely to go anywhere.  (Even in last summer's ACA/individual-mandate case, the Court gave no indication that it would wholly reconsider Congress's power to regulate activities that have a substantial effect on interstate commerce.)

More, SB 102 outlaws enforcement of federal law--even by federal law enforcement.  Enforcement of federal law is a felony in Kansas, but the legislature gave federal law enforcement officials this gift: Kansas won't arrest or detain them prior to, or during the pendancy of, any trial for a violation.  In other words, the charge, trial, and conviction are all just part of the political theater surrounding this obviously invalid law.

(In addition to the substantive portions of the law, SB 102 also includes the usual statements for this kind of law--statements about the Tenth Amendment (in support of a robust idea of states' rights) and the Second Amendment (as an absolute bar to any gun regulation).  It also has a section on the Ninth Amendment.)

Attorney General Eric Holder shot back, reminding the state of the Supremacy Clause, and concluding that "the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law."

Governor Brownback responded, arguing that the measure enjoyed wide bi-partisan support in the state.  He said that this meant that "[t]he people of Kansas have clearly expressed their sovereign will.  It is my hope that upon further review, you will see their right to do so."

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States Can Restrict FOIA Laws to Own Citizens, Court Says

A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause.  We covered oral arguments here.

The ruling puts an exclamation point behind the idea that there's no fundamental right to public records.  If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information.  If you want it, take it up with your legislature.

The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA.  One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident.  The other, Hurlbert, sought state real estate tax records on half of his clients.  The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens.  (It did provide most of the records through other means.)  Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.  

The Court disagreed.  In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause.  It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens.  It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA).  The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records).  And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.

The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce.  "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all."  Op. at 13.

Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."  

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Peter Sagal's Constitution USA

Peter Sagal (of NPR's Wait, Wait . . . Don't Tell Me!) took to the road on his Harley to talk about the Constitution with everyone from scholars to regular folk.  His question: Does the Constitution have what it takes to keep up with modern America?  His result: a four-part series on PBS, premiering next Tuesday, May 7, titled Constitution USA.  Here's the promo:

Watch A More Perfect Union - Preview on PBS. See more from Constitution USA with Peter Sagal.

 

Constitution USA also has its own web-site, with links, text, video clips of Sagal's interviews, and even constitutional games (yes, games!).  Check it out.

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Government Seeks Supreme Court Review of Recess Appointment Power

The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.

Recall that the D.C. Circuit ruled that they didn't.  (Here's our coverage of the lower court ruling, with links to resources.)  That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess.  The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid. 

The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess. 

It's a good bet the Court will take this.  There's a circuit split, and the stakes are high.  As the government explains:

[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history.  It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.

Petition at 11-12.

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Utility Group Lacks Standing to Intervene to Stop EPA Clean Water Rulemaking

A three-judge panel of the D.C. Circuit ruled this week in Defenders of Wildlife v. Perciasepe that a utility industry group lacked Article III standing to intervene in a case brought by Defenders against EPA in which the parties entered into a consent decree establishing a schedule for EPA to initiate notice-and-comment rulemaking on certain effluent limitations and effluent limitations guidelines.  

The ruling means that the EPA will move forward with notice-and-comment rulemaking pursuant to the consent decree, and that the utility group's challenge is dismissed.

The case arose when Defenders and the Sierra Club reached an agreement with the EPA to establish a schedule for notice-and-comment rulemaking to review and possibly rewrite Steam Electric effluent limitations and effluent limitations guidelines under the Clean Water Act.  Defenders filed suit and simultaneously filed a consent decree.  Eight days later, the Utility Water Act Group, or UWAG, an association of energy companies, moved to intervene (in opposition to the consent decree).  The district court denied the motion, and UWAG appealed.

The D.C. Circuit ruled that UWAG lacked standing, a requirement for intervention.  The court first held that UWAG didn't assert a procedural injury.  In particular, UWAG didn't have any claim that it should be "subject to such rulemaking only to the extent the statute commands it or authorizes EPA, in its informed discretion, to undertake it," because UWAG didn't identify a statutory procedure that the consent decree required EPA to violate.  Moreover, UWAG didn't have a procedural injury flowing from the consent decree's short notice-and-comment schedule: UWAG couldn't cite any authority that the 13-month schedule was too short.

The court next said that the consent decree didn't require EPA to promulgate new rules.  Instead, the decree simply required EPA to conduct a rulemaking and then decide whether to issue a new rule.  The court held that this wasn't enough to meet the imminent harm requirement for standing.

Assuming no successful appeal, the next step is for EPA to start its notice-and-comment procedure pursuant to the consent decree.

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Loyola Annual Constitutional Colloquium Call for Papers

Loyola University Chicago School of Law is organizing the FOURTH ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.

This is the fourth annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.

This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.

Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.

Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.

Register here; more information is here.

Topics, abstracts, papers, questions, and comments should be submitted to:

constitutionlaw@luc.edu

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.

Conference Organizers:

. Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law

. Professor Juan Perea

. Professor Alexander Tsesis

. Professor Michael J. Zimmer

 Loyola Constitutional Law Faculty:

. Professor John Nowak, Raymond and Mary Simon Chair in Constitutional Law

. Professor Barry Sullivan, Cooney & Conway Chair in Advocacy

. Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law

. Professor George Anastaplo

. Professor Juan Perea

. Professor Alan Raphael

. Professor Allen Shoenberger

. Professor Alexander Tsesis

. Professor Michael Zimmer

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[Image: Howard Chandler Christy, Scene at the Signing of the Constitution of the United States, Architect of the Capitol]

Constitutional Issues in the Tsarnaev Case

The Obama administration announced today that it would not hold alleged Boston Marathon bomber Dzhokhar Tsarnaev as an enemy combatant, as some (perhaps most prominently Senator Lindsay Graham) have advocated.  Adam Serwer argues at Mother Jones that this was an easy case:

Under current law, the fact that Tsarnaev shares an ethnicity and religion with other extremists is insufficient grounds to detain him militarily.  The 2012 National Defense Authorization Act, which Graham vocally supported, defines as eligible for military detention "a person who was part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners."  There's no evidence yet that the suspects in the Boston bombing acted with the support of or at the behest of Al-Qaeda, the Taliban, or associated forces.  Unless that evidence emerges, it wouldn't be legal to hold Tsarnaev as an enemy combatant, even if he and his brother were motivated by extremist religious beliefs.

Serwer quotes Benjamin Wittes, saying "It's actually not a close question."  Wittes set out his case against detention as an enemy combatant on Lawfare.  CRS has a terrific backgrounder, titled Detention of U.S. Persons as Enemy Belligerents, here.

There's still some buzz about the Miranda question.  New York v. Quarles (1984) created the "public safety" exception; the case is here.  The Obama FBI issued this memo, obtained first by the NYT, on October 21, 2010, interpreting the exception and possibly expanding its scope for terrorist suspects.  (Wittes posted these reflections on the memo on Lawfare.)  Glenn Greenwald at the Guardian writes here; Emily Bazelon at Slate writes here; and Sandy Levinson and Jason Mazzone go back and forth at Balkinization here.  CRS has a good introduction to some of the issues, Terrorism, Miranda, and Related Matters, here.

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Oral Arguments in Kebodeaux, the Sex Offender Registration Case

The Supreme Court heard oral arguments this week in United States v. Kebodeaux, the case testing whether Congress can require a federal sex offender to register, when the offender served out his full sentence before Congress enacted the Sex Offender Registration Act.  

The arguments centered on just how far congressional authority extends under Congress's power to regulate the military (because Kebodeaux was convicted under the UCMJ) and the Necessary and Proper Clause (because he was required to register under SORNA only after he served out his full sentence).  That latter point, the key here, in turn largely centered on the reach and understanding of United States v. Comstock, the OT 2009 case holding that Congress could authorize a federal judge to order the civil commitment of a "sexually dangerous" person in federal custody even beyond the term of his sentence.

Comstock was a 7-2 ruling, with Chief Justice Roberts joining Justice Breyer's majority opinion.  Justices Kennedy and Alito concurred separately.  Justices Scalia and Thomas dissented.  

Chief Justice Roberts sent strong signals during arguments in Kebodeaux that he sees this application of SORNA as beyond the pale.  Justices Kennedy and Alito were also critical of the government's position, but seemed slightly less firm in their positions, slightly more open.  Justice Sotomayor, too, pressed for limits on government authority.  If three of these switch from their positions in Comstock, Kebodeaux will go the other way.

My argument review at SCOTUSblog is here.

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Bradley Manning's "Secret" Trial

In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.

We've previously discussed the contentious Bradley Manning prosecution here, here, here, here, and here.

In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access.  The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so."  It concluded that the court did not have the "jurisdiction" to grant the relief requested.

 

Bradley Manning reading his plea statement in court, sketched by Clark Stoeckley via

 

The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.

A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:

The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”

Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.   

Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."

Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.

RR

Party's Non-Settlement Moots "Similarly Situated" Labor Case

A sharply divided Supreme Court (5-4, along conventional ideological lines) ruled on Tuesday that when a lone plaintiff sues under the Fair Labor Standard Act on behalf of herself and all others "similarly situated," but then declines to answer a defendant's settlement offer in the case, the case--the entire thing--becomes moot.  

The ruling in Genesis Healthcare v. Symczyk deals a significant blow to the FLSA's provision that allows an employee to sue on behalf of all others "similarly situated."  That's because the ruling allows a defendant to moot an entire case by offering complete settlement to a lone lead plaintiff--whether the plaintiff accepts it, rejects it, or ignores it.  But if the dissent is right, this is a one-off that should never happen again.

Symczyk sued Genesis Healthcare under the FLSA for backpay after Genesis docked its employees' pay for a half-hour lunch each day, even when employees worked through lunch.  She sued on behalf of herself and all others "similarly situated."  (The FLSA specifically provides for this class-action-like mechanism.)  Genesis offered to settle for the full amount of monetary damages, but put a deadline on its offer of 10 days.  Symczyk didn't respond, and the trial court dismissed her case.  The Third Circuit reversed, but only as to the collective action.  The Third Circuit said that the settlement offer mooted Symczyk's individual claim, but that it didn't moot her collective claim on behalf of others "similarly situated."

The Supreme Court ruled the entire case moot.  The majority, by Justice Thomas, joined by Chief Justice Roberts, and Justices Scalia, Kennedy, and Alito, assumed, but did not decide, that the Third Circuit was right about Symczyk's individual claim, but it reversed on her collective claim.  The Court said that once it assumed that Symczyk's individual claim was moot, the ruling on the collective-action allegations turned on a "straightforward application of well-settled mootness principles."  Basically: "the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied."  The Court distinguished the "relation back" cases under Rule 23 class-action doctrine, saying that here "[t]here is simply no certification decision to which resondent's claim could have related back."  It also distinguished the "inherently transitory" cases under class-action doctrine, saying that unlike those cases, which were for injunctive relief challenging ongoing conduct, this case was about monetary damages for past conduct.  And it said that its ruling wouldn't undermine the purpose of the FLSA's collective-action provision, because the purpose of that provision is different than the purpose of class actions (on which Symczyk relied): the FLSA works differently than class certification--FLSA "conditional certification" simply isn't class certification--and that difference matters.

Justice Kagan wrote an animated dissent for herself and Justices Ginsburg, Breyer, and Sotomayor.  She took aim at the majority's assumption that the settlement mooted Symczyk's claim and wrote that if the lower courts could get that right (that is, that Symczyk's claim wouldn't go moot just because she ignored a settlement offer) this case should never happen again.  Here's just one among many gems in her dissent:

So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory.  And a note to all other courts of appeals: Don't try this at home.

If the lower courts, which are currently split on the question, can work this out as Justice Kagan did, this case will, indeed, never happen again.  But in the meantime, the Court's ruling deals a significant blow to FLSA plaintiffs who bring collective action claims in those circuits where a settlement offer moots an individual claim.  Even more generally, it's yet another blow to access to justice.

SDS

Argument Review: Does a Port's Enforcement Have the Force and Effect of Law?

The Supreme Court heard oral arguments yesterday in American Trucking Association v. City of Los Angeles, the case asking whether federal law preempts the Port of Los Angeles's "concession agreement" that it requires of all drayage truck operators.  Our argument preview is here.

Two points got the Court's attention.  First, the justices tested whether the Port was acting in a proprietary way in enforcing the concession agreement, thus triggering the market participant exception.  This question turns on whether the Port's enforcement of the agreement had "the force and effect of law"--language from the preemption clauses in the Federal Aviation Administration Authorization Act that means that enforcement by a state as state is preempted, but enforcement by a state as market actor is not.  Here, the Port's concession agreements are contracts with drayage truck operators (making the Port look like a market actors), but they are ultimately backed by criminal penalties, even if not for breach of the contract, and the whole operation relates to regulation of public land (making the Port look like the state).  Take a look at this exchange with the attorney for the Port:

JUSTICE KENNEDY: You are saying that you can do by contract what you cannot do by regulation.  And I don't understand that argument when there are criminal penalties that attach to the breach of the contract.

MR. ROSENTHAL: But, Justice Kennedy, let me say again, there are no criminal penalties that attach to the breach of the contract.  It is purely a contract.  The remedies are purely civil.  Even our other side in their argument has conceded there are no criminal penalties to the breach of the concession agreement.

JUSTICE SCALIA: I'm not sure that's crucial.  You think a state can say nobody's going to come on our highways until it signs a contract?  Okay?  These highways belong to us, they are State land, and anybody who wants to ride on the highways, you have to enter a contract with the State.  And that's going to get around this Federal statute?

Others, too, asked about the criminal penalties and the scope of the Port's regulatory authority--all to the end of determining whether the Port looks more like the state, or more like a market actor, when it enforces its concession agreement.

Next, the Court pressed on the scope of Castle, the case overturning Illinois's punishment of a carrier's repeated violations of the state's freight-weight restriction by completely suspending the carrier's right to use Illinois state highways for certain periods.  Here, the arguments turned on whether the Port's enforcement mechanism was a punishment for prior violations (as in Castle), or whether it simply operated to ensure that only currently compliant trucks had access to the Port.  There's also an issue about the continued vitality of Castle, given that the federal regulatory scheme that governed at the time has since been superceded.

The Port seemed to have the tougher time at arguments, but that's no (necessary) bellweather.  There were plenty of open questions to suggest that there are no easy answers here.  As a practical matter, if the Court rules against the Port, it would undo years of litigation and negotiation between the Port and the surrounding community related to environmental and health concerns and send those paties back to the drawing table.  That, in turn, could impact both community health and the environment, and the Port's plans for even more expansion.

SDS