Tuesday, July 15, 2014
The D.C. Circuit ruled today that a former teacher in the D.C. schools did not enjoy protection under the First Amendment after he was fired for sending an e-mail complaining about his principal's misrepresentation of student test scores to former Chancellor Michelle Rhee.
The teacher, Bruno Mpoy, had a long list of complaints against his principal, Donald Presswood, when he sent an e-mail to Rhee. Nearly all of these involved classroom conditions. But after Mpoy was fired (and undoubtedly aware of the first part of the Garcetti test and the D.C. Circuit's interpretation of it), he focused on this sentence in the e-mail:
Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative [the achievement test used to measure student learning and improvement].
Mpoy argued that this sentence was not written pursuant to his official responsibilities--and that he therefore jumped the first Garcetti hurdle by showing that he spoke "as a citizen." (As a threshold matter, in order for a public employee's speech to enjoy First Amendment protection, the employee must have spoken (1) as a citizen and (2) on a matter of public concern. Only then, if a plaintiff can so show, the court goes on to apply the free speech test, whether the government "had an adequate justification for treating the employee differently from any other member of the general public.")
The D.C. Circuit disagreed. The court ruled that Mpoy wrote this sentence in his capacity as an employee:
In [the context of the e-mail], the sentence about the misrepresentation of the students' results was also plainly a greivance about Presswood's interference with Mpoy's duty to assess and ensure the achievement of his students.
That means that Mpoy didn't even get out of the gate under Garcetti. No citizen speech; no protected speech; no First Amendment protection.
The court added a section to address the recently decided Lane v. Franks. In that case, the Supreme Court held that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena," when testifying was outside the scope of the employee's "ordinary job responsibilities." The court considered the possibility that the adjective "ordinary" signalled a narrowing of the area of employee speech left unprotected by Garcetti.
But the court said that it didn't have to decide that; it ultimately didn't matter. That's because the school officials could reasonably believe that they could have fired Mpoy--and therefore enjoyed qualified immunity.
Monday, July 14, 2014
The Second Circuit ruled last week in Holland v. Goord that prison authorities substantially burdened a Muslim prisoner's free exercise of religion when they punished him for failing to complete a urine test within a three-hour window during fasting time for Ramadan. The plaintiff couldn't complete the test because he refused to drink water during his fast. (H/t to reader Jeff Wadsworth.)
The ruling means that the case goes back to the trial court to determine whether the prison authorities had a sufficient penalogical interest in requiring the urine test (and the water drinking, in order to facilitate the test) under Turner v. Safley. But that doesn't look good for the state: the Second Circuit noted that there was no good reason why the authorities couldn't administer the test (and require the plaintiff to drink water) after sundown (indeed, the plaintiff suggested this option himself). It also noted that the prison subsequently changed its own regulations to allow a religious accommodation to urine testing.
The Second Circuit rejected the plaintiff's invitation to disregard the "substantial burden" test from Employment Division v. Smith. Instead, the court ruled that the urine test met that requirement, drawing on its own cases saying that the denial of a religious meal is a substantial burden on religion.
The court also rejected the trial court's conclusion that the urine test and water drinking were mere de minimis burdens (because the plaintiff could have made up a drink of water during the fast with one extra day of fasting). The court said that the plaintiff sufficiently showed that this would have been a "grave sin," even if he could have made up for it.
Because the state changed its rules on urine testing to allow a religious accommodation, the court denied the plaintiff's request for injunctive relief under both his free exercise claim and his RLUIPA claim. The court rejected other claims, too. But it remanded the free exercise claim for determination whether the state had a sufficient penalogical interest in conducting the urine test the way that it did, and, if not (as is likely), for money damages.
Geoff Stone (Chicago) writes over at Huffington Post that religious tests for public office, which are still around in eight state constitutions, may well be upheld by the Roberts Court, should they ever be tested.
Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas all have these provisions, though they go unenforced. That's because the Court struck these tests in 1961 in Torcaso v. Watkins. But Stone says if the issue were to return to this Court, testing one of the eight state constitutional provisions, the five conservative justices may well reverse Torcaso and uphold the religious test.
But why would they disagree with Torcaso? After all, the reasoning of that unanimous decision seems clearly correct. But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court in 1961. This is so across a range of issues, but perhaps most conspicuously in the realm of religion. Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.
Stone cites Hobby Lobby and Town of Greece as just two recent decisions supporting this conclusion. Stone also argues that these five justices have already demonstrated their willingness to overturn well settled precedent. See Citizens United; Heller; Gonzales v. Carhart.
Monday, July 7, 2014
Tom Goldstein and Marty Lederman debated the impact of the Wheaton College ruling on contraception coverage for Wheaton College students and employees (and, by extension, other religious non-profits' employees) over at SCOTUSblog. The back-and-forth provides a nice window into the more technical aspects of the somewhat mysterious ruling.
At the core of the debate: whether federal regs allow the government to treat Wheaton College's health insurer as a "plan administrator" under ERISA, even if Wheaton College doesn't file Form 700. (Recall that the Court enjoined the government's use of Form 700 against Wheaton College and said that Wheaton College could instead file a letter stating its religious objections. Wheaton College's health insurer is only required to provide free contraceptive coverage if it is a "plan administrator" under ERISA.) Marty argues that it's complicated, and that without Form 700 there may be no regulatory trigger for the government to treat the insurer as a "plan administrator" and therefore to require it to provide free contraceptive coverage. Tom argues that it's not so complicated: the regs allow the government to designate other forms (like the Court's letter) to treat an insurer as a "plan administrator." All the government has to do is so designate the letter (Underscoring Tom's interpretation: the Court wrote in its Order that "[n]othing in this order precludes the Government from relying on this notice [the letter by Wheaton], to the extent it considers it necessary, to facilitate the provision of full contraception coverage under the Act." That seems to say that the Court sees its letter as potentially triggering the treatment of Wheaton College's insurer as a "plan administrator.")
In a separate post, Tom theorizes about Justice Breyer's position in the case.
Saturday, July 5, 2014
The Supreme Court this week enjoined the exemption for religious non-profits from the requirement that employer group-health insurance plans include contraceptives. That exemption allowed a religious nonprofit to notify its health insurer or third-party administrator (using "EBSA Form 700") that it had a religious objection to providing contraceptive coverage; at that point, the insurer or administrator would have to provide contraceptives directly to the organization's employees, free of charge. This week's short, unsigned Order halted the use of EBSA Form 700 and said that petitioner Wheaton College, a religious college in Wheaton, Illinois, could instead write a letter to HHS informing the agency that it is a religious organization and that it has a religious objection to providing coverage for contraceptive services.
In short, the ruling replaced HHS's process for religious exemption (EBSA Form 700) with its own (a letter to HHS).
The ruling strikes a second serious blow to the contraception requirement. (The first came earlier this week in Hobby Lobby, which allowed closely-held, for-profit corporations to exempt themselves from certain contraceptives under the requirement, but almost certainly opened up a much wider hole in the requirement (and potentially in many other government regulations).) The Court was careful to write that its ruling was not a conclusion on the merits. But it's hard to read it any other way, particularly in light of the mertis discussion in the dissent, the fact that the Court drafted its own exemption procedure for religious non-profits (supplanting HHS's procedure), and the Court's suggestion that it'll take up the merits soon enough.
The ruling isn't clear on how religious non-profits' insurers or administrators will have to provide contraceptive coverage. Here's the problem: The insurers or administrators only have to provide contraceptive coverage directly to employees upon learning that a religious non-profit objects, usually through receipt of the EBSA Form 700; but the Court's Order says that Wheaton College and by extension other religious non-profits don't have to complete that form. This leaves it to HHS to figure out whether and how to require insurers and administrators to provide contraceptive coverage directly to the organization's employees.
The Order is strange on several levels. For one, it replaced the HHS exemption (EBSA Form 700) with its own (a letter to HHS). But it's not at all clear that the Court's exemption is any less intrusive on Wheaton College's freedom of religion (at least as the College has defined it in challenging EBSA Form 700): Why is writing a letter to HHS any less intrusive than filing Form 700 and sending it to the insurers and administrators? Wheaton College claimed that the mere certification of its religious objection to the contraception requirement violated its religion (because it made Wheaton College complicit in someone else providing contraception), so why is the letter any better than the form?
For another, it's also not clear why the Court would take such an aggressive action (essentially overruling a valid federal rule and replacing it with its own) at this stage of the litigation (on an application for an injunction), when the circuits are split on the issue (which, as the dissent points out, has been a basis for denying an injunction by some of the very justices who joined the Court in this Order (including Chief Justice Roberts)). This hardly seems like a Court merely calling balls and strikes.
For yet another, the Order seems inconsistent with the Court's ruling just earlier this week in Hobby Lobby. In that case, the majority pointed to HHS's exemption for religious non-profits (the exact same exemption at issue here) as evidence that the contraception requirement for closely held for-profits wasn't narrowly tailored--that is, that the exemption was a way that the government could achieve its interest in providing contraception while still giving closely held for-profits an out. Yet in this later ruling, the Court stepped back from that exemption and replaced it with its own.
Finally, there's the strangeness that a government-created religious exemption could itself violate free religion. This is the point that Judge Posner made so strongly in his opinion rejecting Notre Dame's challenge to the exemption.
Justice Sotomayor wrote a lengthy and vigorous dissent, joined by Justices Ginsburg and Kagan, covering everything from the extraordinary relief the Court granted under the very high standard of the All Writs Act to the merits. She also distinguished the Little Sisters case, in which the Court also allowed a letter to replace the EBSA Form 700: Little Sister's third-party administrator was itself a church plan and exempt from the contraception requirement, so nobody's access to contraception was affected. Here, the Court's injunction risks depriving employees of Wheaton College of contraception, because the insurer or the administrator only have to provide it upon receipt of the EBSA Form 700. But under the Court's Order, they won't receive the EBSA Form 700.
As with Hobby Lobby, it's clear that this ruling will extend far beyond the facts of this particular case, likely even farther than the Court itself thought. How far? As with Hobby Lobby, only time will tell.
Friday, July 4, 2014
Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.
Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text. More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics).
[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .
The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination. In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .
The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community. Political equality is equal political empowerment.
Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA. That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer. That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness."
Thursday, July 3, 2014
The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment. The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."
Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:
The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.
Article I, Section 11. Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.) The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."
The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny. The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis). The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.
The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application. It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.
Wednesday, July 2, 2014
The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs. (The only requirement: the reg has to pose a substantial burden on the belief. But we saw in Hobby Lobby itself how easy it is to meet that standard.) If so, those regs would be subject to RFRA's strict scrutiny test. That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.
In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws. The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches. We can expect to a flurry of cases testing this.
So: What now?
ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog. Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.
You might say that these options are unfriendly to religions. But Robson tells us why it's really the ruling itself that's religion-unfriendly. Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations. That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women. (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners. The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)
Robson's right. And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc. She concludes:
While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA. Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA. What Congress giveth, it can taketh away. And it should.
Monday, June 30, 2014
A sharply divided Supreme Court ruled today in Harris v. Quinn that a state cannot require nonunionized home-healthcare workers, or personal assistants, in the state's Medicaid program to pay "fair share" union dues. The majority held that a fair-share-dues requirement for non-union members violates their First Amendment association rights.
The ruling is a victory for non-unionized home-healthcare workers, and for anti-union types generally. But on the other hand, the ruling did not go as far as it might have in striking public sector fair share requirements. The majority took another shot at public sector fair share requirements (it earlier took a shot in Knox), prompting the dissent to go to great lengths to defend the constitutionality of those requirements, and setting up those requirements (yet again) for reconsideration.
In other words, the majority strongly criticized Abood, but did not overrule it. The dissent vigorously defended it. We can expect more challenges, with the Court moving to overturn it. (Abood held that a state may require fair share fees for non-union members in a public sector union in the interests of preventing free-riding and labor peace.)
The majority (penned by Justice Alito, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas) held that personal assistants were not full state employees--they're supervised principally by the individual clients they serve. Moreover, state law limits the union's role in representing them. As a result, the Court said that Abood's rationales don't apply, and declined to "extend" Abood. The Court applied "exacting scrutiny" and held that the state fair-share requirement failed.
The dissent (penned by Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor) disagreed that personal assistants were different than public employees for Abood purposes. Dissenters would have applied Abood in a straightforward way and upheld the state fair-share requirement.
But while the majority and dissent jousted over the status of personal assistants (in relation to public employees in Abood)--and while the majority ultimately hung its hat on its distinction between public employees and personal assistants--it was clear that the real struggle is over Abood itself. The majority left it hanging (once again) by a thread, while the dissent vigorously defended it.
As in Knox, the majority opinion here begs for another case, another chance to overturn Abood--a move that would strike a very serious blow to public sector unions. In the meantime, it continues to chip away at Abood's foundation, planting time bombs in Harris and Knox that it will use whenever it gets the next case that puts Abood squarely within its range.
Until that time comes, however, Abood stays on the books. And public sector fair-share requirements survived again, even if bruised and battered.
Thursday, June 26, 2014
Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB. He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel."
But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster. That limitation, a Senate rules change from last fall, should also blunt today's ruling. That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.
Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees). (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.) The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.
The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session. The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid. It's not clear yet how many other offices may be affected by the ruling. Our oral argument review (with a link to our preview) is here.
The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future. That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here. That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism). As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).
The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment. And again: the Senate gets to say, presumptively, when it's in recess.
As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate. This gives even the House the power to block a recess--and recess appointments--for any period over 3 days. That means that the House could block a recess appointment by denying the Senate consent to recess.
Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.
At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause. Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses. It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.
The judgment striking the NLRB appointees was unanimous. But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:
To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.
June 26, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (2) | TrackBack (0)
Wednesday, June 25, 2014
A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest. The ruling deals a blow to law enforcement, to be sure. But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone. In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search. Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.
The ruling breaks little new ground on Fourth Amendment analysis. Instead, it applies a familiar framework to a relatively new technology, cell phones. (The ruling applies to both smart phones and flip phones.)
The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton. As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.
The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape." It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example). (The Court said that there was little evidence that destruction of evidence was even a problem.)
On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.
On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests. He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future."
Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction. In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law." (Emphasis in original.) Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate. "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."
Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing. That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain. As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue. And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law. That bill will surely die in the Senate. But Rivkin and Foley's arguments for standing don't depend on legislation.
Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:
Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."
That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .
If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.
Thursday, June 19, 2014
Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio. Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice. And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words." Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.
Zelinsky offers this advice:
The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . . On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.
Wednesday, June 18, 2014
The Brennan Center released a report this week on the state of voting in the run-up to the 2014 election. Among the highlights:
- Since 2010, 22 states have implemented new voting restrictions, including voter ID requirements, requirements that make registration harder, restrictions on early voting, and restrictions on restoring voting rights for people with past criminal convictions. The report says that "[p]artisanship played a key role" and that "[r]ace was also a significant factor" in enacting restrictions. The 2014 election will be the first election for new restrictions in 15 states, possibly leading to problems on Election Day as those states implement the restrictions for the first time.
- There are ongoing cases challenging restrictions in seven states--Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas, and Wisconsin. More may come.
- Since 2012, 16 states have passed laws to make it easier to vote, including laws that modernize registration, inrease early voting opportunities, allow pre-restration of 16- and 17-year-olds, restore voting rights to people with past convictions, ease voter ID burdens, and expand access by language and absentee voting. These laws will be in effect in 11 states in the 2014 election.
In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute.
The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved. The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."
Judge Bergsman's dissenting opinion disagreed with the
majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.
To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.
Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark.
Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term. Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars. And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.
Monday, June 16, 2014
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights.
The plaintiff, Amir Meshal, was visiting Somalia in November 2006. When fighting erupted there, Meshal fled to Kenya. Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him. Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued. Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts. In all, Meshal was detained abroad for four months. He was never charged with a crime.
Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case. Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents. But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case. Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances. The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.
Given the state of the law, there is no chance of a successful appeal. But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
Wednesday, June 11, 2014
The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act. The ruling is just the latest in a line of challenges to the accommodation. We posted most recently here. (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.)
The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.
The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses). The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.
The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate. Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.
As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights. The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights. In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,
The appellants are not required to "provide" contraceptive coverage. . . . The appellants are not required to "pay for" contraceptive coverage. . . . Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . . Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.
The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal. The court also rejected the plaintiffs' request to remand the case to amend their complaint.
The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT. The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.
As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government. But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.
As to the Vienna Convention, the court said that the Convention confers a private right of action.
As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.
June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)