Wednesday, August 6, 2014

D.C. Circuit Upholds Restrictions on Corporate PACs, but it Doesn't Really Matter

The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment.  But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.

The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech.  But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment.  On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses.  The court summed up its claim:

Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.

STII argued that Citizens United compelled this result.  In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation.  STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.

The court disagreed.  It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure.  Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own.  Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC).  As the court said,

Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way.  And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.

The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.

But in practical terms the ruling probably won't mean much.  That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC.  In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.

August 6, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

House Republicans Authorize Suit Against President Obama

The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act. 

Here's the resolution, H. Res. 676

The case will have several problems right out of the gate, most notably standing.  Here's our last post on the suit, with links to earlier posts.

July 30, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Individual Mandate Survives Origination Clause Challenge

The D.C. Circuit today rejected an Origination Clause challenge to the so-called individual mandate under the Affordable Care Act.  The court also rejected a Commerce Clause challenge to the individual mandate.  The ruling means that this long-shot case is dismissed.

The plaintiff in the case, Matt Sissel, argued that the individual mandate violated the Origination Clause.  That Clause requires revenue-raising bills to originate in the House; it says,

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Sissel argued that the ACA's individual mandate really originated in the Senate, not the House, and therefore violated the Clause.

The court summarily rejected that argument.  The court said that the Supreme Court has given a narrow reading to the Origination Clause, applying it only to bills that "levy taxes in the strict sense of the word."  But the court said that the taxing feature (or the revenue-raising feature) of the individual mandate was merely a by-product of the mandate, not the principal goal of the mandate--and therefore not a tax in the strict sence.  Instead, the court said, the mandate was designed to help achieve universal health care coverage, not principally to raise revenue: 

The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that [the individual mandate] is not a "Bill[] for raising Revenue" under the Origination Clause. . . .  And after the Supreme Court's decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is "to increase the number of Americans covered by health insurance and decrease the cost of health care," not to raise revenue by means of the shared responsibility payment.

The court also rejected Sissel's Commerce Clause argument, ruling that the this argument was foreclosed by the Supreme Court's decision in NFIB, which upheld the individual mandate as a valid measure under Congress's taxing power.  The court rejected Sissel's argument that his election not to purchase insurance was a violation of federal law (and therefore the federal requirement violated the Commerce Clause).  Instead, the court said that under NFIB Sissel had a choice: buy insurance, or pay a tax.  That's a valid exercise of the taxing power (even if it has a regulatory effect), and Sissel's argument under the Commerce Clause misses the mark.

The ruling is just the latest in a line of cases challenging different aspects of the Affordable Care Act.  It's an important victory for the ACA, even if not a particularly surprising one.

July 29, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 23, 2014

Arizona Botches Un-Enjoined Execution

Arizona reportedly botched the execution today of Joseph Wood III, the condemned prisoner who won a preliminary injunction against his execution at the Ninth Circuit, but then lost when the Supreme Court vacated that order.

According to numerous sources, Wood gasped and snorted for nearly two hours after receiving the drug cocktail that Arizona used to kill him.  WaPo reports here.

Now with the benefit of hindsight, Chief Judge Kozinski's earlier dissent from the Ninth Circuit denial of a rehearing en banc has especial resonance.  In a brief opinion rejecting Wood's legal claim, Judge Kozinski also heavily criticized the way the federal government and states now administer the death penalty.  Take a look:

Whatever happens to Wood, the attacks [against the death penalty] will not stop and for a simple reason: The enterprise is flawed.  Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful--like something any one of us might experience in our final moments.  But executions are, in fact, nothing like that.  They are brutal, savage events, and nothing the state tries to do can mask that reality.  Nor should it.  If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive--and foolproof--methods of execution. . . .  The firing squad strikes me as the most promising. . . .  Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood.  If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn't be carrying out executions at all.

July 23, 2014 in Cases and Case Materials, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Court Vacates Injunction Against Execution

The Supreme Court yesterday vacated the Ninth Circuit ruling over the weekend that ordered the delay of a scheduled execution until the condemned prisoner received details from the state about the method of execution. 

Recall that the condemned prisoner, Joseph Rudolph Wood III, argued that the state's failure to provide him information violated his First Amendment right to receive information about the method of execution.  The Ninth Circuit agreed--or at least agreed that he had a likelihood of success on the merits, or that he raised a "serious question" on the merits--and granted a preliminary injunction.

The Supreme Court's order vacates that ruling.  It means that the execution can go forward without the information.

The order was short and unsigned, with no real legal analysis:

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted.  The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction.  The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.

July 23, 2014 in Cases and Case Materials, Courts and Judging, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Appeals Courts Issue Opposing Rulings on Obamacare Exchange Tax Credits

Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level).  A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated.  In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.

The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration.  If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare.  That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered. 

Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general).  All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong.  That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.

The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges.  Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges.  The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.

We posted more details on the D.C. case (in the lower court) here.

The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]."  But other sections of the Act treat an "Exchange" as only a state-created exchange.  And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so.  (Other portions of the Act are relevant, too, but these are the key portions.)

In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.

The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act.  They also said that the legislative purpose of the ACA supports this reading.  Because of the ambiguous language, the IRS could interpret it in any way that's reasonable.  And its interpretation was reasonable.

July 22, 2014 in Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Monday, July 21, 2014

Ninth Circuit Delays Execution Until Condemned Gets Information

The Ninth Circuit on Saturday ordered the delay of a scheduled execution until the condemned prisoner gets information about the two-drug cocktail that Arizona plans to use.  The court ruled (on a motion for a preliminary injunction) that Joseph Rudolph Wood III had a likelihood of success on the merits, or that he raised a "serious question" on the merits, that the state's denial of information violated the First Amendment. 

The order comes on the heels of a ruling last week by a California federal district judge that the death penalty violates the Eighth Amendment.  The court's opinion noted the recent botched executions in Oklahoma and Ohio in recognizing the need for publicity and public scrutiny of methods of execution.

The court held that Wood likely had a First Amendment right to information about the cocktail.  The court said that this right derived from the First Amendment right to information about different stages the criminal process, and in particular the right to view executions in California First Amendment Coalition, a Ninth Circuit case that says that "the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber . . . ."

The court also looked to historical practice in transparency in execution methods.  It said that the "evidence does not conclusively establish a historical tradition of public access to the sources of lethal injection or the qualifications of executioners," but still

such exhaustiveness is not required at the preliminary injunction stage.  Instead, we ask only whether Wood raises "serious questions" going to the merits.

Answer: Yes, he does.

The ruling means that Arizona has to provide more particular information about its method of lethal injection before it can execute Wood.  The ruling is a victory for transparency in executions and will likely contribute to the growing public pressure against the death penalty.

July 21, 2014 in Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2014

No Constitutional Damages for Victims of Rape in Military

The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action.  (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.)  The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.

The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments.  (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.)  The court said that "special factors" counseled against a Bivens remedy.  (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.)  In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."

The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy.  The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.

The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database.  The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.

The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld.  In other words, it adds to the well established body of law that says that courts defer entirely  to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.

July 19, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, July 17, 2014

Obama Administration Challenges Congressional Subpoena

White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week.  Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.

Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas.  Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."

Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove.  (Congress was investigating the firings of U.S. attorneys.)  That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them.  (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege.  The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.)  The appeals court did not reach the merits, however.  Instead, Miers and Bolton effectively ran the clock on the case.

Issa is now reportedly considering holding Simas in contempt of Congress.

Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt

July 17, 2014 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Rules Committee Hears Testimony on House Lawsuit Against President Obama

The House Rules Committee had a hearing yesterday on the House Resolution authorizing a lawsuit against President Obama for alleged overreach in implementing the Affordable Care Act. (We posted on some of these alleged overreaches here.)  Profs. Elizabeth Price Foley (FIU) and Jonathan Turley (GW) testified in support of the measure; Simon Lazarus (CAC) and Walter Dellinger testified against.

The big hurdle to a suit is standing: under current doctrine, the House lacks standing to sue (although Foley reiterated her theory of standing, and Turley argued that current standing doctrine is wrong).  Without standing, the courts won't hear the case.

And they shouldn't.  This is obviously a gimmick, not a serious constitutional challenge to the President's authority, as evidenced by the nonsense at yesterday's hearing.  Dana Milback over at WaPo hits the nail on the head.  (H/t to Darren Elliott.)  We might add that it's just a little ironic that political conservatives are now touting the benefits of open courts, access to justice, and an activist judiciary.

Supporters of the suit argue, among other things, that the courts are the proper venue for this dispute, because the House has no other realistic way to control the President.  (Changing the law or withholding appropriations won't work, they say, because a bill would also have to pass the Senate (and get signed by the President).)  But that's no standard for standing.  It also ignores the fact that Congress, even one party in Congress, has a whole panoply of ways to check and frustrate the President--which Republicans have used to great effect.  Finally, it proves too much: If there really are no political ways to check the President, maybe that's because the President's actions enjoy wide political support (because they help people, not harm them, and thus raise standing problems for anyone seeking to challenge them).

The Resolution authorizes the Speaker to "initiate or intervene in one or more civil actions on behalf of the House of Representatives" to force the President to "act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation (and failure to implement) any provision of [the Affordable Care Act]."

The authorization doesn't identify a particular presidential action that violates the Constitution.  Turley identifies shifting funds between line-items in the budget to fund portions of the ACA and extending tax credits to health-insurance purchasers in states where the federal government runs the exchange, among others.  Lazarus offers good arguments why these are valid executive actions in implementing the ACA, and not violations of separation of powers principles.

July 17, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

O'Connor Releases Judicial Selection Plan

Justice Sandra Day O'Connor recently released The O'Connor Judicial Selection Plan, a set of recommendations for selecting and retaining state judges, developed in conjunction with the Institute for the Advancement of the American Legal System, or IAALS, at the University of Denver.  Here's O'Connor:

 

The plan has four parts: the creation of judicial nominating commissions; gubernatorial appointments; judicial performance evaluations; and retention elections.

The plan responds to "persistent efforts in some states to politicize the bench and the role of our judges."  It's designed as "a step toward developing systems that prioritize the qualifications and impartiality of judges, while still building in tools for accountability through an informed election process."

July 17, 2014 in Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

D.C. Circuit: No Free Speech for Complaining Teacher

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.

July 15, 2014 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, July 14, 2014

Second Circuit Says Required Urine Test Substantially Burdens Religious Freedom

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.

July 14, 2014 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Stone on the Constitutionality of Religious Tests for Public Office

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.

July 14, 2014 in Courts and Judging, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

More on the Wheaton College Ruling

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.

July 7, 2014 in Cases and Case Materials, News, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, July 5, 2014

Court Enjoins Religious Exemption for Contraception Mandate

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.

July 5, 2014 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, July 4, 2014

Equality at the Core of the Declaration

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.

9780871406903_300

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." 

You can hear Allen on the Diane Rehm show yesterday.  Here's WaPo's book review.

July 4, 2014 in History, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Louisiana Supremes Uphold Ban on Firearms for Ex-Felons

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.

July 3, 2014 in Cases and Case Materials, Comparative Constitutionalism, Fundamental Rights, News, Second Amendment, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 2, 2014

After Hobby Lobby, What Now?

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?

RobsonConLawProfBlog'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.

July 2, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, News, Opinion Analysis, Religion, Reproductive Rights | Permalink | Comments (1) | TrackBack (0)

Monday, June 30, 2014

Sharply Divided Court Takes Another Shot at Public Sector Fair Share

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.)

We posted most recently on the case here.

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.

June 30, 2014 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)