Wednesday, May 21, 2014

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)

Wednesday, May 7, 2014

District Court Halts Wisconsin Political Spending Investigation

Judge Rudolph T. Randa (E.D. Wis.) this week granted a preliminary injunction against a criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe.  The criminal investigation sought information related to WCFG's coordination with Governor Walker's campaign committee and other 501(c)(4) groups, in violation of Wisconsin law, to promote the passage of Wisconsin Act 10, Governor Walker's (successful) effort to sharply restrict union strength in the state (among other things).  Judge Randa's ruling means that the investigation must stop, at least for now.

The ruling is just the latest chapter in a long-running story involving Wisconsin Act 10, Governor Walker, and advocacy (and spending) around both. 

Judge Randa ruled that the investigation violated free speech, because it "was commenced and conducted 'without a reasonable expectation of obtaining a valid conviction.'"  According to Judge Randa, that's because it was based on an interpretation of Wisconsin law that would have banned coordination on issue advocacy (and not candidate contributions)--something that the First Amendment does not allow.

Judge Randa said that WCFG's issue advocacy was core political speech, and that its coordination with other 501(c)(4)s, and even with the Friends of Scott Walker, did not raise any risk of quid quo pro corruption.  Therefore the state could not criminalize it.

Judge Randa rejected the defendants' argument that WCFG's coordination with Governor Walker's campaign created a quid pro quo problem.  He said that that approach "would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption."  He said WCFG simply held the same views that Governor Walker already held, and that therefore there was no risk of corruption.

Judge Randa cited McCutcheon throughout and made a special point of quoting Justice Thomas's concurrence on Buckley's demise:

Buckley's distinction between contributions and expenditures appears tenuous.  As Justice Thomas wrote, "what remains of Buckley is a rule without a rationale.  Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law."  Even under what remains of Buckley, the defendants' legal theory cannot pass constitutional muster.  The plaintiffs have been shut out of the political process merely by association with conservative politicians.  This cannot square with the First Amendment and what it was meant to protect.

Op. at 25.

May 7, 2014 in Campaign Finance, Cases and Case Materials, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, May 5, 2014

Speech the Justices Agree With

Supreme Court justices are opportunistic supporters of free speech, according to a study by Profs. Lee Epstein (Southern California/Washington University), Christopher M. Parker (Centenary College), and Jeffrey A. Segal (Stony Brook), reviewed by Adam Liptak in the NYT.  That is, "liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative)."

The study looked at 516 free speech cases from 1953 to 2011, "from Hugo Black to Elena Kagan," involving "liberal" and "conservative" speech and concluded that "the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker." 

Among sitting justices, the study found that Justice Scalia had the largest gap between votes for liberal and conservative speech, followed closely by Justice Thomas. 

The liberals "present a more complex story."  The study found that the gap for Justice Ginsburg was small, and for Justice Breyer "negligible."  The study did not include Justices Sotomayor and Kagan, due to lack of meaningful data.

May 5, 2014 in First Amendment, News, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, May 2, 2014

Sixth Circuit Upholds Law Requiring Candidate Petition Circulators to Disclose Employers

The Sixth Circuit affirmed the denial of a preliminary injunction against an Ohio law that requires candidate petition circulators to disclose their employers against a First Amendment challenge.  The ruling in Libertarian Party of Ohio v. Husted means that the requirement stays on the books through the primary election on Tuesday, and that candidates of the plaintiff Libertarian Party of Ohio (LPO) will not appear on that primary ballot.  This in turn means that those candidates won't appear on the general election ballot, and that therefore the LPO will likely not receive the required number of votes in the general election to retain its recognition as a political party in Ohio.

This, in turn, means that the LPO will likely have to re-qualify as a political party in Ohio.  That's no easy task: it would have to get more than 38,500 signatures from at least one-half of the congressional districts in the state, meeting the very petition requirement (and others) that was at issue in this case.

The case involves Ohio's requirement that petition circulators--in this case, candidate petition circulators--disclose their employer on the petition form.  The LPO challenged that requirement, arguing that it violated the First Amendment on its face, after its petition circulator failed to disclose, causing the state to discard those petitions (and causing the candidates not to appear on the primary ballot).

The Sixth Circuit disagreed.  The court applied the "exacting scrutiny" test for disclosure requirements and determined that the strength of the governmental interest reflected the seriousness of the burden on First Amendment rights.  In particular, the court said that Ohio's requirement has but a "scant" chill on First Amendment freedoms.  Op. at 18.  On the other hand, the court said that the state's interest in the requirement is "substantial and legitimate."  Op. at 20.  That interest is in combating fraud in candidate petition circulation--a problem that came to a head, according to the court, during the circulation of petitions for Ralph Nader in the 2004 presidential election.

The court distinguished Buckley v. American Constitutional Law Foundation, Inc., where the Supreme Court struck a Colorado law requiring paid circulators to wear identification badges stating their names and their employers' names and phone numbers.  The court said that ACLF involved an initiative campaign, where this case involved a candidate petition (where the risk of corruption is higher); that the ACLF record contained no evidence that paid circulators were more apt to commit fraud than volunteers, but where this record contains that evidence; that the Colorado law required more disclosure of information; and that Colorado had other measures to deter fraud and diminish corruption.

The court also distinguished McIntyre v. Ohio Elections Commission, where the Supreme Court struck an Ohio law that prohibited the distribution of campaign literature that did not contain the name and address of the person or campaign offiical issuing it.  The court said that the Ohio law in McIntyre outlawed an entire category of speech (anonymous political speech), where the Ohio circulator requirement only required disclosure.

The court also ruled that the LPO did not establish a substantial likelihood of success on the merits of its due process (vagueness) challenge to the requirement.

The court recognized the practical significance of its ruling for the LPO:

Without a gubernatorial candidate on the general election ballot . . . the LPO in all likelihood will lose its status as a ballot-qualified party in Ohio.  We note that the LPO has struggled to become and remain a ballot-qualified party in Ohio, and we acknowledge that this decision entails that their efforts must continue still.  But we also note that we decide one case at a time, on the record before us.  In so doing, we preserve the First Amendment's primary place in our democracy over the long run.

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

Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 30, 2014

District Court Strikes Wisconsin Voter ID Law

Judge Lynn Adelman (E.D. Wis.) yesterday struck Wisconsin's voter ID requirement, ruling that it violated both the Constitution and Section 2 of the Voting Rights Act.  The ruling in Frank v. Walker is a wide-ranging, thorough examination of the evidence of the state's interests, the hassles for voters to comply, and the disparate impact on black and Latino voters.  The ruling permanently enjoins the state from enforcing its voter ID requirement.

(There are two other cases challenging Wisconsin's voter ID law under the state constitution.  They're both at the state supreme court.)

As to the constitutionality of the law, the court applied the Anderson/Burdick balancing test and concluded that the burden of the voter ID requirement outweighed the state's interests.  The court said that the state's interests in preventing in-person voter-impersonation fraud, promoting confidence in the integrity of the electoral process, detecting other types of fraud, and promoting orderly election administration and recordkeeping were not supported, or barely supported, by the evidence.  On the other hand, the court found that the hassle to individual voters in complying with the law could be substantial. 

The principal difference between this case and Crawford v. Marion County, the 2008 case where the Supreme Court upheld Indiana's voter-ID law, was the evidence of voter burden.  Here, as the court carefully recounted in the opinion, there was particular evidence of serious burdens to individual voters.  Not so in Crawford.

As to Section 2 of the VRA, the court said that blacks and Latinos more likely lacked qualifying voter ID--that's based just on the numbers--and therefore were disparately impacted in violation of Section 2.  The court rejected the state's argument that blacks and Latinos had equal access to voter ID, even if they more likely lacked voter ID in reality; the court said that equal access didn't reflect the Section 2 test.  But even if it did, the court said that blacks and Latinos were likely to have a harder time obtaining qualifying voter IDs.  Either way, the court said, the voter ID requirement violated Section 2.

The court said it would "schedule expedited proceedings" to hear a claim that a legislative change in the voter ID requirement saved it, and thus to lift the injunction.  But the court also said that "given the evidence presented at trial showing that Blacks and Latinos are more likely than whites to lack an ID, it is difficult to see how an amendment to the photo ID requirement could remove its disproportionate racial impact and discriminatory result."

April 30, 2014 in Cases and Case Materials, Elections and Voting, Equal Protection, News | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Second Circuit Orders Release of Administration's Justification for Targeted Killing

The Second Circuit ruled earlier this week that the government must release a redacted version of an Office of Legal Counsel memo outlining the government's legal authority to conduct targeted killings.  The case, New York Times v. Department of Justice, is a FOIA case seeking the OLC memo, and not a legal challenge to the targeted killing program itself.  The court said that the government had released so much information about its legal justification--including the white paper that the government leaked to the media last year--that the government couldn't really claim that the legal justification was still secret.

We posted on the white paper here, with links to earlier posts (and to the white paper itself), and most recently on legal challenges to the targeted killing program here.

April 24, 2014 in Cases and Case Materials, Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 23, 2014

Court to Rule on Separation of Powers in Foreign Affairs

The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits.  The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem.  Our latest post on the case, with links to earlier posts, is here.

The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel." 

The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question.  On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations. 

In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.

April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, April 17, 2014

Daily Read: NYT Editorial on Constitutionalizing Police Surveillance

With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey  and federal litigation in New York, is no longer viable.

An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:

500px-Spy_silhouette_document.svgThis problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.

Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.

The editorial recommends that the city agree

to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.

 

April 17, 2014 in Criminal Procedure, Current Affairs, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

State Constitutional Paramount Allegiance

Matt Ford writes over at The Atlantic that there's an irony in rancher Cliven Bundy's land claim against the federal Bureau of Land Management, now brewing in Nevada.  That's because the very state constitution that Bundy so forcefully defends (in the spirit of states' rights, state sovereignty, and the like) contains a "paramount allegiance" clause, enshrining federal supremacy right there in the document.  Here it is, from Article I, Section 2, in the Declaration of Rights:

All political power is inherent in the people.  Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it.  But the Paramount Allegiance of every citizens is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States.  The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

Ford explains that the clause originated in Nevada's first constitutional convention in 1863, and that state constitutional framers, overwhelmingly unionists, retained it in 1864. 

Nevada isn't the only state with a Paramount Allegiance Clause.  As Ford explains, Reconstruction-era state constitutions throughout the South had one.  While most were dropped in subsequent revisions, some states, like Mississippi and North Carolina, still have it.

April 15, 2014 in Comparative Constitutionalism, Federalism, News, State Constitutional Law | Permalink | Comments (2) | TrackBack (0)