Monday, June 9, 2014

CERCLA, Statute of Repose Block Environmental Suit

The Supreme Court ruled today in CTS Corp. v. Waldburger that the federal Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, does not preempt a state statute of repose that blocked the plaintiffs' state-law nuisance claim for environmental damage caused by the defendant.  (A statute of repose sets a time limit on the filing of a complaint, much like a statute of limitations.)  The case means that state-law claims for environmental damage that fall outside a state's statute of repose (because the plaintiffs didn't learn about the damage until years after the defendants caused it), including the plaintiffs' case here, will be dismissed--unless and until Congress changes CERCLA to provide for preemption of state statutes of repose.

The case arose when a group of property owners sued CTS for environmental damage to their land.  CTS previously ran an electronics plant on the land, where it manufactured and disposed of electronics and electronic parts.  As part of the operation, CTS stored certain chemicals.  CTS later sold the property to the plaintiffs, certifying it as environmentally sound.

The plaintiffs realized that the property wasn't environmentally sound--but 24 years after the sale.  So when they sued, CTS successfully moved to dismiss the case based on the state statute of repose, which prevents subjecting a defendant to a tort suit more than 10 years after the last culpable act of the defendant.  The plaintiffs argued that CERCLA preempted the statute of repose, allowing their case to move forward.  The Court today agreed with CTS.

Justice Kennedy wrote the majority opinion and said that the text, the historical understanding of the language, and the Court's "presumptions about the structure of pre-emption" all pointed to preemption.  The opinion turned in large measure on the historical understanding of the difference between a statute of limitations and a statute of repose.  That's because everyone agrees that CERCLA's plain language preempts state statutes of limitations.  The question was whether it also covered statutes of repose.  The Court said no.  (The Court said that CERCLA's drafters understood that there was a difference between the two, but included only statutes of limitations, not statutes of repose, in the preemption clause.)

Justices Sotomayor and Kagan joined Justice Kennedy's opinion in full.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined in the result and all but the portion that relied on the Court's "presumptions about the structure of pre-emption." 

Justice Ginsburg wrote a dissent, joined by Justice Breyer.  Justice Ginsburg argued that CERCLA's "discovery rule" displaced the commencement-of-action date in the state statute of repose.  She wrote that the CERCLA's discovery rule set the commencement date as the date that the plaintiffs actually knew (or reasonably should have known) that the injury was caused by the defendant, not the date of the defendant's last act or omission (in the state statute of repose).  This meant that the plaintiffs filed within the statute of repose, and that their case should be allowed to proceed.

As in all preemption cases, Congress could have the last word.  Here, as elsewhere, Congress can change the federal statute to provide for preemption of state law after the Court interpreted it not to preempt state law (or vice versa).  That seems unlikely here, though. 

June 9, 2014 in Cases and Case Materials, Federalism, News, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Thursday, June 5, 2014

Governor Lacks Authority to Revoke Commutation

The Michigan Supreme Court ruled this week in Makowski v. Governor that former Michigan Governor Jennifer Granholm lacked authority under the state constitution to revoke her valid commutation of a prisoner's sentence.  The ruling means that the prisoner, whose sentence was first commuted but whose commutation was later revoked, is now eligible for parole.

The Michigan constitution gives the governor the power "to grant reprieves, commutations and pardons after convictions for all offenses . . . ."  Art. 5, Sec. 14.  Governor Granholm exercised this authority when she granted a commutation on the recommendation of the parole board to an individual who was serving a life sentence for felony murder.  But when the family of the victim contacted her office to express its dissatisfaction after the commutation was signed and sealed, she instructed the parole board to halt all commutation proceedings and revoked the commutation.

The Michigan Supreme Court ruled that she couldn't do that it.  The court first said that the case did not present a political question, because the state constitution limits the governor's power to commute "to those procedures and regulations that the Legislature enacts," and "[a]ccordingly, the distribution of power between the Legislature and the Governor regarding commutations creates a legal question that this Court must answer."  The court said that legislative silence as to those procedures did not mean that the court should defer; instead, the court said that it had a duty to determine the extent and limits of executive authority regarding commutations.  The court also ruled that its determination of the merits did not violate the separation of powers, because "this Court may review the Governor's exercise of power to ensure that it is constitutional."

As to the merits, the court held that the text and context of the commutation document indicated that it was final, and that the state constitution provided no power to revoke a commutation. 

June 5, 2014 in Cases and Case Materials, Comparative Constitutionalism, Executive Authority, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2014

Eighth Circuit Says Missouri Flag Desecration Law Unconstitutional, No Qualified Immunity

The Eighth Circuit ruled in Snider v. City of Cape Girardeau that Missouri's statute banning flag desecration was facially unconstitutional.  The court held that the statue was overbroad in violation of the First Amendment, and that there was no possible narrowing construction.  The court also rejected the arresting officer's claim of qualified immunity.

The case arose when a Cape Girardeau police officer arrested an individual for desecrating an American flag, in violation of Missouri law.  The officer made the arrest pursuant to a warrant issued by a local judge and based upon the officer's statement of probable cause to the county prosecuting attorney.

The ruling couldn't have been a surprise to anyone, except possibly the officer and the county prosecutor.  (The ruling included this telling sentence: "Both Officer Peters and [the prosecuting attorney] stated that they were unaware of the United States Supreme Court's decisions in Texas v. Johnson and United States v. Eichman, which struck down statutes criminalizing flag desecration as unconstitutional.")  The court ruled that Missouri's statute was facially unconstitutional under those cases.

The court also ruled that the officer did not enjoy qualified immunity.  The officer argued that he should be entitled to qualified immunity, because the prosecutor and judge signed off on a warrant.  He cited Messerschmidt v. Millender, where the Supreme Court granted qualified immunity to an officer who executed a search warrant unsupported by probable cause because, in part, a neutral magistrate issued the warrant. 

But the Eighth Circuit noted that the Messerschmidt Court said that the neutral magistrate's involvement did "not end the inquiry into objective reasonableness."  The court also noted that the standard in Malley v. Briggs survived Messerschmidt.  The Malley standard says that there's no qualified immunity where "if it obvious that no reasonably competent officer would have concluded that a warrant should issue."  Here, it was obvious.

The ruling upholds a lower court ruling granting attorney's fees to the plaintiff.

June 2, 2014 in Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2014

Court Strikes Rigid IQ Cut-Off for Death Penalty

The Supreme Court today ruled in Hall v. Florida that a state's use of a rigid cut-off to determine intellectual disability for the purpose of administering the death penalty violates the Eighth Amendment's ban on cruel and unusual punishment.  Our oral argument preview is here.

The 5-4 ruling, penned by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is another in a series of blows against the death the penalty.  Justice Alito wrote the dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas.

The case tested Florida's use of a rigid cut-off to determine intellectual capacity for the purpose of administering the death penalty.  The Court previously ruled in Atkins v. Virginia (2002) that the Eighth Amendment bars the use of the death penalty for persons with intellectual disabilities.  Florida defined intellectual disability with reference to an IQ score of 70 or less.  That meant that a defendant with an IQ score above 70 (including the defendant in this case) couldn't introduce further evidence of intellectual disability. 

The Court held that this violated the Eighth Amendment's ban on cruel and unusual punishment.  It said that Florida's statute could be read to comply with the standard medical definition of intellectual disability (by including consideration of the standard error of measurement in the IQ test), but that the state instead applied it in a rigid way, foreclosing additional evidence of intellectual disability when a defendant has an IQ test above 70.  That, the Court said, "disregards established medical practice in two interrelated ways": it takes the IQ score as "final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence"; and it disregards the standard error of measurement in an IQ test.  (The standard error of measurement, or SEM, reflects the inherent imprecision in the IQ test and the resulting possible variation in results.  It means that an IQ test score really reflects a range of results, not a single number.)

The Court said that a "significant majority of States implement the protection of Atkins by taking the SEM into account."  "The rejection of the strict 70 cutoff in the vast majority of States and the 'consistency in the trend' toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane."

The ruling is just the latest blow to the death penalty.  It means that states can't use a rigid IQ cutoff to determine intellectual disability under Atkins; instead, they have to consider the SEM and other evidence of intellectual disability, consistent with the standard medical approach of measuring intellectual disability.

May 27, 2014 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

State Cannot Sue Tribe for Off-Reservation Gaming

The Supreme Court ruled today in Michigan v. Bay Mills Indian Community that a Native American Indian Tribe is immune from a suit by the State of Michigan for off-reservation gaming.  Our oral argument preview is here.

The 5-4 ruling was an unusual split: Justice Kagan wrote for the majority, which included Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Sotomayor filed a separate concurrence.  Justice Thomas wrote a dissent, joined by Justices Scalia, Ginsburg, and Alito.  Justice Scalia filed a separate dissent.

The Court held that tribal sovereign immunity bars Michigan's suit against the Bay Mills Indian Community for opening a casino outside its tribal lands.  The Court ruled that Congress did not abrogate immunity, and the Tribe did not waive it, and that there's no good reason to revisit prior decisions holding that tribes have immunity even when a suit arises from off-reservation commercial activity.

May 27, 2014 in Cases and Case Materials, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

Global Day of Action to Close Guantanamo

Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility.  Amnesty International's press release is here.

Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay.  We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places.  The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.

May 23, 2014 in Congressional Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Schiff Talks AUMF on NPR

Rep. Adam Schiff (D-Cal.) spoke this morning with Steve Inskeep on Morning Edition about the AUMF.  The interview came a day after the House rejected a measure to set an end date on the Authorization.

Schiff said that the AUMF has been invoked as legal authority for actions both longer and broader than originally intended.  He also said that Congress has abdicated its responsibility in checking its use.

We posted most recently on legislation related to the AUMF here, after Senate Majority Leader Harry Reid announced that he'd like to reconsider it. 

May 23, 2014 in Congressional Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2014

Ninth Circuit Upholds Contribution Disclosure Requirement

The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman.  The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.

The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed.  The Prop 8 Committees challenged the requirement both on its face and as applied.

The court rejected the challenges.  It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest.  As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:

A state's interests in contribution disclosure do not necessarily end on election day.  Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits.  As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests.  In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day.  Absent post-election reporting requirements, California could not account for such late-in-the-day donations.  And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.

As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe.  Judge Wallace dissented on the as-applied challenge.

 

May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)

Judge Orders Release of Force-Feeding Videos

Judge Gladys Kessler (D.D.C.) ordered the government to release videos of force-feeding and medical records of Guantanamo detainee Abu Wa'el Dhiab in today's status conference in Dhiab's habeas case.  Recall that Judge Kessler previously entered a temporary restraining order halting force-feedings of Dhiab until today and ordering the government to produce medical records and videotapes

But Judge Kessler's order today didn't address force feedings.  According to Wells Bennet over at Lawfare, that means that force-feedings can resume:

Intriguingly, court and counsel didn't address (so far as I could tell) the TRO's "no force feeding" instruction with respect to Dhiab.  Considering that Judge Kessler's prior ruling limiting the ban until today's date of May 21, it seems the prohibition could dissolve as early as tomorrow.  For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief.  (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab's force feeding; but the detainee's emergency motion papers did not, strictly speaking, ask the court to take that step.)

May 21, 2014 in Cases and Case Materials, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Government to Reveal Targeted Killing Authority

The Justice Department will release a memo that makes the case that its drone attacks are legal.  The move comes in the wake of a Second Circuit ruling last month ordering the release of a redacted version of the memo, and amid calls in the Senate for the memo's release as that body considers the nomination of David Barron, one of the authors, to a federal appeals court.

Recall that the Department previously leaked a white paper outlining the government's case.  We posted most recently on the legal challenges here.

The Washington Post reports here.

May 21, 2014 in Executive Authority, News, War Powers | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 20, 2014

Waldman's Biography of the Second Amendment

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

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

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

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

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

Sunstein on Epstein's Classical Liberal Constitution

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

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

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

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

Sunday, May 18, 2014

Court Temporarily Stops Force-Feeding at Guantanamo

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

May 18, 2014 in Cases and Case Materials, Courts and Judging, Fundamental Rights, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

Seventh Circuit Enjoins Portions of Wisconsin Campaign Finance Law

The Seventh Circuit this week issued a sweeping ruling on Wisconsin's campaign finance requirements and permanently enjoined a good part of the law.  The ruling in Wisconsin Right to Life, Inc. v. Barland marks the end of the second round of this broadside challenge to Wisconsin's law.  The first round ended with a Seventh Circuit ruling overturning the state's $10,000 cap on contributions under the First Amendment.

The ruling this week is long and detailed.  That's because Wisconsin Right to Life, Inc., a 501(c)(4) organization, challenged "a dizzying array of statutes and rules" as vague, overbroad, violative of free speech.  It's also because Wisconsin law, according to the court, is "labyrinthian and difficult to decipher without a background in this area of the law," and "has not been updated to keep pace with the evolution in Supreme Court doctrine . . . ."

Portions of the ruling were unsurprising.  Thus the court ruled that Wisconsin's ban on corporate speech and its cap on corporate fundraising for an unaffliated PAC violated the First Amendment under Citizens United

Other portions required a little more work:

Disclaimer Requirement.  The court held that Wisconsin's regulatory disclaimer requirement for independent political communications, as applied only to 30-second radio ads (because that's all that was challenged), was unconstitutional.  Wisconsin law required a certain disclaimer, but regulations went 50 words beyond that disclaimer, adding nothing to it, with no apparent good reason, and cutting into ad time.

Definitions of "political purposes" and "political committee."  The court ruled that the statutory definition of "political purposes" and the regulatory definition of "political committee," which trigger certain registration, reporting, and disclosure requirements, were unconstitutionally vague and overbroad, imposing PAC duties on nearly any political communication.  The court gave Wisconsin law a narrowing construction, ruling that "[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II."

PAC Registration and Reporting Requirements.  The court ruled that the Wisconsin regulation that treats issue advocacy during the preelection period as fully regulable express advocacy if it mentions a candidate is unconstitutional.  It also ruled that the regulation that "imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose."

In short, the court said that the Wisconsin legislature failed to keep up with changes in the doctrine--in particular, the change that Citizens United wrought--and that the Wisconsin Government Accountability Board's attempts to fill in the gaps through regulations simply swept too broadly.

The court's ruling directs the lower court to permanently enjoin the above-mentioned provisions.  The ruling is a sharp kick in the pants to the Wisconsin state legislature to update its campaign finance law.

May 16, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Rethinking War Powers

Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force.  The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda.  Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.

At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally.  They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking  members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict."  The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas.  The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force.  (The Senate has taken no action on the measure.)

According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ."  According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:

Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.

May 15, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

D.C. Circuit Dodges Export Clause Claim, Allows Coal Tax, for Now

The D.C. Circuit ruled yesterday in Coal River v. Jewell that a coal company couldn't challenge a Department of Interior regulation imposing a fee on coal at the point of sale under the Export Clause.  The ruling means that the Interior regulation stays in place for now, and probably for good.

The case inolves a federal fee on coal extraction under the Reclamation Act.  Congress designed the fee, determined by the weight of extracted coal, to fund the restoration of land damaged by coal mining.  The Department of Interior, recognizing that coal at the point of extraction contains rocks and other non-coal debris (and thus weighs more than the coal alone), issued regulations imposing the fee on coal at the point of sale (after the weighty debris is removed).  The result of the Interior regulations is to impose a fee that is lower than it would have been at the point of extraction (because the coal weighs less at the point of sale than at the point of extraction).

Still, coal companies sued, arguing that the Interior regs violated the Export Clause.  That Clause says that "No Tax or Duty shall be laid on Articles exported from any state."

In an earlier round of litigation, the Federal Circuit used the canon of constitutional avoidance and rejected the challenge, interpreting the statutory phrase "coal produced" as referring to coal extracted and the regulation as a fee imposed on extraction but at a later date.

In this round, Coal River, a new coal company, sued in the D.C. District and appealed to the D.C. Circuit, seeking to create a split between the D.C. and Federal Circuits. 

The D.C. Circuit didn't bite.  It ruled that Coal River's suit was untimely.  That's because the Reclamation Act requires all challenges to regulations promulgated under the Act must be brought within sixty days of the rule's promulgation.  The court said that Coal River didn't satisfy a statutory "safety valve" that allowed later suits under certain circumstances.

The court said, however, that Coal River could bring this same suit in the Court of Federal Claims later, after Interior actually imposes the regulation and fee on it.  But that case would almost surely meet the same fate as the earlier case, where the Federal Circuit interpreted the regulation to impose a fee on extraction collected at a later date.

May 14, 2014 in Cases and Case Materials, Jurisdiction of Federal Courts, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Massachusetts High Court Says Pledge Does Not Violate Equal Protection

The Supreme Judicial Court of Massachusetts ruled last week that the daily recitation in school classrooms of the Pledge of Allegiance, with the words "under God," did not violate the state constitutional equal rights amendment.   The case, Doe v. Acton-Boxborough Regional School District, was brought by a group of atheist and Humanist students, who claimed that the words "under God" alienated them and caused them to become outsiders because of their religion.  (The plaintiffs only argued equal protection; they did not bring a religion clause claim.)

The Massachusetts high court rejected the argument.  It said that the Pledge was voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even with the words "under God"; and that in any event the plaintiffs didn't show that they had been treated differently because of their religion.  On that last point, the court said that the practice or reciting the Pledge treated all students the same: each student, regardless of religion, could say it along with the rest of the class, or not.  Here's the court:

Where the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religion rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion.  [Citing Harris v. McRae and San Antonio v. Rodriguez.]  Where the program or activity is applied equally to all students, and where those who object to it are not required to participate, or may choose to participate in all parts of it that they do not find objectionable, the feeling of "stigma" caused by seeing or hearing the program being provided to others is not legally cognizable for purposes of the equal rights amendment.  Any claim that, by conducting the program or activity for others who do not choose to participate, the school has publicly repudiated a plaintiff's beliefs and thereby rendered him or her a "second-class citizen" or "outsider" is not tenable, and we decline to apply [state constitutional equal protection] in this fashion.

May 13, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Abe to Reinterpret Japan's Pacifist Constitution

Japanese Prime Minister Shinzo Abe plans to change Japan's pacifist constitution--not by amending it, but by reinterpreting it.

Abe is expected to announce a plan to amend several laws that would allow the Japanese Self-Defense Forces to engage in collective self-defense, that is, military defense of allied countries even when Japan is not directly threatened.  This will mark a shift in the role of Japan's military overseas, which is currently limited to non-combat peacekeeping duties under Article 9 of the Constitution.  Article 9 reads:

Renunciation of War.  Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained.  The right of belligerency of the state will not be recognized.

Abe's plan is designed to sidestep the more cumbersome constitutional amendment process.  But it has drawn critics: a high-profile group of scholars and writers have denounced the plan, and there's a campaign afoot to get Article 9 (the traditional, pacifist version) on the Nobel Committee's radar screen for the Peace Prize as a way to push back against Abe's reinterpretation.

If successful, Abe's plan would change 60 of practice under Article 9--without a constitutional amendment.

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

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

Frontline's United States of Secrets

Frontline airs the first of its two-part series United States of Secrets tonight.  The documentary examines NSA secret surveillance programs developed in the wake of the 9/11 attacks.  There's a clip at the link above, and another here, Inside the NSA the Day After 9/11.

 

May 13, 2014 in Fourth Amendment, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2014

Seventh Circuit Stays Ruling Enjoining Wisconsin Investigation

The Seventh Circuit yesterday stayed Judge Randa's ruling preliminarily enjoining further criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  We posted on Judge Randa's ruling here.

The Seventh Circuit said that because the defendants filed a notice of appeal before Judge Randa issued his injunction, Judge Randa had to show that the appeal was frivolous before acting.  This he did not do.  Here's from the short opinion:

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous.  The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction.  This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.

The ruling puts the ball back in Judge Randa's court, allowing him to certify that the appeal is frivolous and resume the case there.  If he does not, then proceedings in the district court are stayed pending appeal on the merits.

The Seventh Circuit also stayed the portion of Judge Randa's ruling that required the defendants to return or destroy documents "as long as proceedings continue in this court." 

May 8, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)