Friday, September 20, 2013
The Brennan Center filed suit this week in federal court on behalf the Texas State Conference of the NAACP and the Mexican American Legislative Caucus of the Texas House of Representatives challenging SB 14, Texas's strict voter ID law. The Brennan Center's resource page on the case is here.
The suit this week comes soon after the United States Department of Justice filed its own suit against Texas to stop SB 14.
Recall that the Texas AG announced that the state would move to enforce SB 14 soon after the Supreme Court struck the coverage formula for the preclearance requirement in the Voting Rights Act this summer in Shelby County v. Holder.
The suit filed this week, like the DOJ suit before it, also seeks "bail-in" under Section 3(c) of the Voting Rights Act--that is, an order by the federal court for continued monitoring of the state that would operate very much like preclearance under Section 5 would have operated against a covered state like Texas (until the Court struck the coverage formula, leaving Section 5 a dead letter, in Shelby County).
Section 3(c) bail-in may be the next litigation target (after opponents succeeded in challenging the coverage formula for preclearance in Shelby County) for states like Texas facing VRA suits. Texas's responses to these suits will tell.
September 20, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Thursday, September 19, 2013
The Third Circuit panel this week in NCAA v. Governor of New Jersey upheld the federal law prohibiting states from licensing sports gambling against a challenge that it exceeded congressional authority under the Commerce Clause, impermissibly commandeered the states, and violated the principle of equal sovereignty among the states.
The case was a significant test of congressional authority after NFIB v. Sebelius (upholding the ACA's individual mandate under congressional taxing authority, but ruling that it exceeded congressional Commerce Clause authority) and a significant test of the principle of equal sovereignty among the states after Shelby County v. Holder (ruling that the preclearance formula in the Voting Rights Act violated the principle of equal sovereignty among the states and exceeded congressional authority under the Fifteenth Amendment).
The Third Circuit panel rejected both arguments--and the commandeering argument, too--and upheld the federal prohibition. (The court also ruled that the plaintiffs, sports leagues, had standing to challenge the New Jersey law--in part because the law was directed at them (even if indirectly) and because they would have suffered a reputational injury by association with gambling.)
sponsor, operate, advertise, or promote . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
Tuesday, September 17, 2013
The Senate Committee on Rules and Administration, the Library of Congress, and the Government Printing Office celebrated Constitution Day today by launching a new app and web publication that bring analysis and interpretation ofconstitutional case law by LOC experts to your computer or mobile device--free.
The app is based on 100-year-old The Constitution of the United States of America: Analysis and Interpretation (or the Constitution Annotated), a bound and regularly updated publication with analysis of constitutional cases by the Congressional Research Service in the LOC.
The new Constitution
Annotated app is available for the iOS platform and allows users to read the
entire document; browse by section – such as by article of or amendment to the
Constitution; view and navigate content from a table of cases and index; and
search all text. The app can be downloaded for free from iTunes. A direct link is here.
The Constitution Annotated web publication will be available on GPO's Federal Digital System (FDsys) as a digitally-signed, searchable PDF that includes a linked table of contents, a linked table of cases, a linked index and GPO’s Seal of Authenticity on every page.
The new Constitution Annotated and a suite of constitutional resources can be viewed here. The page features links to the app stores, an interactive table listing recent cases of high interest, a bibliography of Constitution-related primary documents in American history and tips for searching the Constitution Annotated on GPO's website.
Thursday, September 12, 2013
The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment. At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.
The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.
But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law. That's because Aguilar was convicted under the state's old AUUW. The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan. The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions. Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.
Illinois's old AUUW--the one Aguilar was convicted under--says:
(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .
The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court." The court said, "In no other context would we permit this, and we will not permit it here either.
At the same time, the court upheld the state's UPF law. (That law was not changed in the wake of Moore.) It says:
A person commits the offense of unlawful possession of firearms or firearm ammunition when:
(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .
The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller. The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).
Wednesday, September 11, 2013
Judge Ketanji Brown Jackson (D.D.C.) today denied the American Meat Institute's motion for a preliminary injunction against new meat labeling rules of the Agriculatural Marketing Service. The AMI argued in American Meat Institute v. USDA that the new country-of-origin, or COOL, rules violated the First Amendment, the Agriculture Marketing Act, and the Administrative Procedures Act. When the AMI sought a preliminary injunction, Judge Jackson ruled that it failed to demonstrate a likelihood of success on any of the claims.
The AMS's COOL rule, final and published in May 2013, requires meat labels that designate the country where the animal was born, raised, and slaughtered, in three categories: Category A, "Born, raised, and slaughtered in the United States"; Category B, "Born in Country X, raised and slaughtered in the United States"; Category C, "Born and raised in Country X, slaughtered in the United States"; and Category D, "Product of Country X." In so designating, the 2013 rule does not allow "commingling of muscle cut covered commodities of different origins"--that is, it doesn't allow meat from different countries to be commingled in the same labeled package. (The 2009 rule did allow commingling, but the AMS changed it in 2013 in order to comply with a WTO ruling and to "let consumers benefit from mor especific labels.")
The AMI alleged that the 2013 COOL rule violated free speech, but Judge Jackson disagreed. The court wrote that Zauderer rationality rule applied (and not the Central Hudson intemediate scrutiny test), because the COOL rule is a disclosure requirement that deals with only "purely factual and uncontroversial" disclosures about where the animal was born, raised, and slaughtered, and because the 2013 rule targeted "deceptive speech" insofar as the earlier rule would have caused confusion about the origin of commingled meat.
The court held that Zauderer's rationality was easily met here: "there is clearly a reasonable relationship between the government's interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other."
The ruling comes on the heels of two cases from the D.C. Circuit addressing when Zauderer or Central Hudson applies. In one, R.J. Reynolds Tobacco Co. v. FDA, the D.C. Circuit held that Central Hudson applied to FDA regs requiring certain textual warnings and graphic pictures on cigarette packages, because the pictures weren't designed to correct consumer confusion or otherwise correct deceptive speech. But in the other, Spirit Airlines v. USDOT, the D.C. Circuit held that Zauderer applied to a DOT rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites. The court said that DOT's regs required factual information and was directed at possibly misleading commercial speech.
The National Constitution Center today posted a candid and wide-ranging 90-minute conversation between Justice Ruth Bader Ginsburg and Center President and CEO Jeffrey Rosen. The Center posted the interview in five parts on Vimeo; here's Part I:
Friday, September 6, 2013
Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.
The give-away comes in the last "Whereas" of the Senate's Syria Resolution. It reads:
Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .
The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power. Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.
Thursday, September 5, 2013
As reported in The Detroit News this afternoon, a Michigan State University creative writing professor and novelist, William S. Penn, has been relieved of his teaching duties by administration for his anti-conservative and anti-Republican remarks made during class.
Penn is a highly regarded writer and professor whose work often centers on his Native American/Anglo identity. For example, his 1996 creative nonfiction book, All My Sins are Relatives, won a North American Indian prose award.
Given the current constructions of the Supreme Court's 2006 decision in Garcetti v. Ceballos, Penn will have a difficult time showing he is speaking as a citizen rather than as a government employee and thus entitled to First Amendment protection. Indeed, the Sixth Circuit in Evans-Marshall v. Board of Education of Tipp City, which we discussed when it was decided in 2010, upheld the termination of a high school creative writing teacher who assigned Ray Bradbury's Fahrenheit 451. To explore that book’s theme of government censorship, she also developed an assignment based on the American Library Association's "banned books."
However, when the Sixth Circuit rejected the "academic freedom" argument of Evans-Marshall, it opined that such a concept is limited to universities and does not extend to high schools. As a university professor, Penn may have a better chance at making an academic freedom argument.
This could make a terrific in class exercise for ConLawProfs teaching First Amendment.
UPDATE: Take a look at the new Ninth Circuit opinion regarding academic freedom and Garcetti. This would substantially improve Penn's position if adopted by the Sixth Circuit.
UPDATE 2: Statement of the MSU AAUP Chapter in support of academic freedom (and further fact intvestigation).
Tuesday, September 3, 2013
Joanna Chiu writes at The Atlantic that Chinese President Xi Jinping's recent comments in support of legal reform have reignited a debate over constitutionalism and constitutional reform in the country. ("Reignited," because the government put a stop to those discussions when it imprisoned Liu Xiaobo and interrogated others in response to a manifest, "Charter 08," by a group of intellectuals calling for constitutionalism and restrained Party power.) Still, she says, any push for constitutionalism or constitutional reform still gets heavy push-back from the government. And an internal Party memo she cites calls for the eradication of "seven subversive currents" in Chinese society; those include "Western constitutional democracy," universal human rights values, media independence, and civic participation.
Chiu quotes a Shanghai lawyer to summarize the problem:
[The constitution] looks beautiful on paper, but in practice Chinese courts do not generally take the Chinese constitution into consideration to decide cases. Ordinary citizens cannot use the constitution to defend their rights or redress their grievances.
As for the government's reaction to talk about constitutionalism and reform, this anecdote is telling:
Nevertheless, calls for China to adhere to the 1982 constitution remain. In December, Beijing University professor Zhang Qianfan published "A Proposal for Consensus Reform," co-signed by 72 intellectuals including He Weifang, demanding that the government abide by the charter. The proposal suggested setting up a review committee within the National People's Congress as a first step to give the constitution real power. But the article, which was posted on Zhang's personal blog and the Beijing University Law School website, was soon deleted without explanation.
Friday, August 30, 2013
The ACLU filed suit earlier this month in the Middle District of North Carolina challenging the state's new restrictions on voting under the Fourteenth Amendment and the Voting Rights Act. Recall that North Carolina, a previously partially covered jurisdiction under the Voting Rights Act, moved quickly after the Supreme Court struck the preclearance coverage formula in Shelby County v. Holder to introduce certain restrictions on the vote, knowing that the full state was free of the preclearance requirement. The ACLU's suit, League of Women Voters of North Carolina v. North Carolina, challenges certain provisions in the state's Voter Information Verification Act, or VIVA.
In particular, the case challenges restrictions on early voting in the state, restrictions on same-day registration, and restrictions on out-of-precinct voting in the state.
The plaintiffs seek declaratory and injunctive relief, and bail-in under Section 3 of the VRA. Bail-in allows a federal court to order continued monitoring of a state's proposed changes to its election laws upon a showing that the state's violations of the Fourteenth and Fifteenth Amendments justify such monitoring--much like Section 5 preclearance, except that the coverage formula isn't fixed.
After Shelby County struck the coverage formula in Section 4(b), and thus rendered Section 5 preclearance a dead letter, Section 3(c) bail-in is the only way that the VRA might authorize continuing federal preclearance of a state's proposed changes to its election laws. The ACLU sought Section 3(c) relief here, and the Department of Justice sought Section 3(c) relief in its recently filed case against Texas.
If the Texas AG's press release is any indication of a litigation position, Section 3(c) is the next likely provision in the VRA to go on the chopping block under a challenge that it exceeds congressional authority under the Fourteenth Amendment.
The ACLU earlier this week filed a motion for a preliminary injunction in ACLU v. Clapper, the case in the Southern District of New York challenging the NSA's mass collection of Americans' telephone data. We most recently posted on the NSA program, in EFFs suit against it, here.
The ACLU argues that it has a substantial likelihood of success on its Fourth and First Amendment challenges to the NSA program. The group also argues that the government exceeded its statutory authority under Section 215 of the Patriot Act in collecting telephony metadata.
At the same time, the government filed a motion to dismiss. The government claims that the ACLU lacks standing (under Clapper v. Amnesty International), that Congress impliedly precluded judicial review of the NSA program, that the NSA program is authorized by Section 215 of the Patriot Act, and that the program doesn't violate the Fourth and First Amendments.
Standing will certainly be an important threshold issue in the case, especially after the Court's ruling in Amnesty International. In that case, the Court ruled that a group of attorneys and organizations didn't have standing to challenge the FISA Amendments Act, which allowed the Attorney General and the DNI to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not "United States persons" and are reasonably believed to be outside the United States. The Court said that the plaintiffs' alleged injury-in-fact was too speculative--that the plaintiffs couldn't show that they'd be targets of surveillance under this FISA authority, that the FISA court would necessarily approve the surveillance of them, or that the government would succeed in its surveillance of them.
Here, in contrast, the ACLU alleged in its complaint that its telephone communications were and are monitored, that this monitoring would reveal privileged and sensitive information between the ACLU and its clients, and that the monitoring will likely have a chilling effect on the group's communications with clients. In other words, the ACLU tried to navigate the Amnesty International barrier and show with more determinacy that it has suffered a sufficient injury in fact.
August 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Fourth Amendment, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, August 28, 2013
Judge Thomas Durkin (N.D. Ill.) ruled last week in Federal Housing Finance Agency v. City of Chicago that a Chicago ordinance that requires mortgagees of vacant buildings in the city to register with the city, pay a registration fee, and maintain the building under certain standards cannot apply to the FHFA or to Fannie Mae or Freddie Mac. The court held that the Chicago ordinance was preempted by federal law and constituted an impermissible tax against the federal government.
The ruling means that Chicago cannot apply its vacant-building requirements to the FHFA or Fannie Mae and Freddie Mac, but the city can still apply the ordinance to private mortgagees of vacant (that is, abandoned or foreclosed) properties.
The ruling is significant, because Fannie and Freddie together hold about 258,000 loans secured by properties in the city. The ruling means that the city cannot compel the FHFA to include Fannie- and Freddie-backed properties in its vacant-property registry, cannot collect a registration fee from the FHFA (or its servicers), and cannot fine the FHFA (or its servicers) for violation of the city's maintenance standards. On the other hand, Fannie and Freddie have their own standards for continuing maintenance of vacant properties. So for Fannie- and Freddie-backed properties, federal standards, not the city's, apply.
The ruling is also significant, because it telegraphs a federalism concern to the thousand or so local governments around the country that have adopted similar vacant-property ordinances. While the ruling doesn't directly touch ordinances outside the City of Chicago, other local governments will do well to revisit their ordinances in light of the ruling.
The FHFA challenged the city's ordinance as running up against the federal Housing and Economic Recovery Act of 2008, or HERA. HERA gives the FHFA authority to place Fannie and Freddie into conservatorship "for the purpose of reorganizing, rehabilitating, or winding up [their] affairs." It also empowers the FHFA to "preserve and conserve the assets and properties of [Fannie and Freddie]."
The FHFA directed Fannie and Freddie to implement consistent mortgage loan servicing and delinquency management requirements and authorized them to contract with servicers who perform activities related to loan defaults, consistent with those requirements. HERA includes a preemption clause that says that the FHFA "shall not be subject to the direction or supervision of any other agency of the United States or any State in the exercise of the rights, powers, and privileges of [the FHFA]."
The FHFA sued the city, arguing that HERA preempted the city's vacant-property ordinance and seeking a declaration and injunction prohibiting the city from enforcing the ordinance against it, or Fannie or Freddie. The court agreed with the FHFA that HERA preempted the city's ordinance and awarded the requested relief.
The court held that Chicago's Ordinance was field- and conflict- preempted by federal law. As to field preemption, Judge Durkin ruled that HERA's charge to the director of the FHFA to take care of Fannie's and Freddie's assets occupies the field, even if HERA's express preemption provision doesn't mention municipal ordinances:
Here, in contrast, it is evident that the Ordinance encroaches on an area of regulation that Congress reserved exclusively for FHFA. As applied to FHFA as conservator and mortgagee, the Ordinance regulates how FHFA manages its collateral, including specifically how this collateral--which FHFA does not actually own--should be preserved. For instance, when FHFA issues guidelines and instructions to servicers regarding the nature and frequency of inspections of vacant and abandoned properties, it is taking those steps it believes necessary to preserve and conserve Fannie and Freddie's assets and property.
HERA expressly prohibits other federal agencies and states from interfering with actions taken by FHFA as conservator. Although HERA's preemption provision . . . does not expressly include laws enacted by municipalities . . . Congress enacted an extensive federal statutory scheme which specifically requires the Director of FHFA to "establish risk-based capital requirements for [Fannie and Freddie] to ensure that [they] operate in a safe and sound manner, maintaining sufficient capital and reserves to support the risks that arise in the operations and management of [Fannie and Freddie]." HERA sets forth various grounds for the Director of FHFA to exercise his discretion to appoint FHFA as conservator of Fannie and Freddie. Once placed in conservatorship, Congress intended for FHFA to be the sole entity responsible for operating Fannie and Freddie's nationwide business of purchasing and securitizing mortgages.
Op. at 24-25.
As to conflict preemption, Judge Durkin held that Chicago's Ordinance "obstructs Congress's intent to have one conservator take control of Fannie Mae and Freddie Mac, and take action as may be 'appropriate to carry on [their business] and preserve and conserve [their] assets and property' without being 'subject to the direction or supervision of any other agency of the United States or any States . . . ." Op. at 29.
Finally, Judge Durkin ruled that Chicago's registration fee was an impermissible tax on the federal government, in violation of McCulloch v. Maryland.
Tuesday, August 27, 2013
The United States District Court for the District of Columbia ruled today in Burns-Ramirez v. Napolitano that a Secret Service Agent's Title VII claim based on her co-workers' alleged false statements about her, which led to the revocation of her top security clearance, can go forward. But the court was clear that it can't rule on the underlying agency decision to investigate, suspend, or revoke the plaintiff's security clearance; it can only rule on the plaintiff's claim that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling grows out of a Secret Service Agent's Title VII claims against DHS for suspending her top secret security clearance based on alleged statements by her co-workers that were false, discriminatory, and in retaliation for her earlier complaints about harassment and retaliation. The Service ultimately revoked her top secret security clearance, which led to her termination as an Agent. (You need a top secret security clearance to be an Agent.)
She sued, and the Service moved to dismiss. The court granted the motion to dismiss, ruling the claim nonjusticiable under Navy v. Egan (1988), insofar as the plaintiff's suit required the court to review the substantive agency decisions to investigate, suspend, or revoke her security clearance. But the court, applying a D.C. Circuit exception to Egan, denied the motion insofar as the suit alleged that agency employees acted with discriminatory or retaliatory motive by making false reports to agency decisionmakers, knowing that those reports were false.
The ruling means that the portion of the case relating to agency employees making false or discriminatory reports can go forward, even as the portion of the case relating to the substantive decision to revoke the plaintiff's security clearance is dismissed.
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 26, 2013
Judge Ellen Segal Huvelle (D.D.C.) ruled today in Bernstein v. Kerry that a group of Americans living in Israel lacked standing to challenge the U.S. government's funding of the Palestinian Authority. Relying heavily on Clapper v. Amnesty International (2013), Judge Huvelle ruled that the plaintiffs' fear of terrorist attacks was not a sufficient injury, that it wasn't fairly traceable to U.S. funding of the Palestinian Authority, and that changing U.S. funding policies wouldn't necessarily reduce their fears.
The ruling means that the case is dismissed. Judge Huvelle didn't rule on the government's political question defense or its its argument that the plaintiffs had no clear right to relief under the Mandamus Act, the basis for their suit.
The plaintiffs argued that the government violated laws that barred the use of U.S. funds to support a Palestinian state unless the Secretary of State determined and certified to Congress that the Palestinian Authority and any governing entity of a new Palestinian state satisfied certain requirements to pursue regional peace and to counter terrorism and that funding was in the U.S. interest.
Judge Huvelle held that the plaintiffs had no support for their view that "subjective emotional response to the possibility of an invasion of a legally-protected interest constitutes an injury-in-fact." Op. at 6. Indeed, she wrote that "a host of cases . . . hold the opposite." Id. (quoting Clapper (a "subjective fear of surveillance does not give rise to standing")). Judge Huvelle also held that the plaintiffs' "standing canot be based on plaintiffs' interest, common among all citizens, in the government following the law." Op. at 8.
Judge Huvelle also held that the plaintiffs failed to show causation and redressability.
Friday, August 23, 2013
The United States Department of Justice sued the State of Texas in federal court seeking to halt the state's voter ID law and to subject the state to ongoing court monitoring under the Voting Rights Act.
The case comes in response to the Texas Attorney General's announcement that the state would move to implement its restrictive voter ID law. The law, SB 14, was denied preclearance under Section 5 of the Voting Rights Act by a three-judge federal court. But the Supreme Court struck Section 5 this summer in Shelby County v. Holder, and vacated the lower federal court's denial of preclearance of SB 14 (and a federal court's denial of preclearance in another case, involving Texas redistricting plans), leaving Texas open to enforce SB 14. (Our coverage of Shelby County is here.) The state AG announced within hours of the Shelby County ruling that the state would move to enforce it. Now the Justice Department has sued to stop it.
DOJ argues that SB 14 violates Section 2 of the VRA both because it was enacted with a discriminatory intent and because it would have a discriminatory effect on the state's Hispanic population. DOJ seeks declaratory and injunctive relief, and continuing federal court monitoring of the state through a preclearance requirement under the "opt-in" provision in Section 3(c) of the VRA. (AG Holder previously announced that he'd seek an opt-in preclearance requirement for Texas in the redistricting case.)
Texas AG Greg Abbott responded to the suit in a press release and gave a glimpse of his defense--the Tenth Amendment.
Just two months ago the U.S. Supreme Court struck down federal preapproval of state election laws. The Court emphasized that the Tenth Amendment empowers states--not the federal government--to regulate elections. The Obama administration continues to ignore the Tenth Amendment and repeated Supreme Court decisions upholding states' authority to enforce voter identification and redistricting laws.
Wednesday, August 21, 2013
ConLawProfBlog's own Prof. Ruthann Robson (CUNY) recently appeared on NPR's The Diane Rehm Show to talk about her fascinating new book Dressing Constitutionally (Cambridge) with Steve Roberts. The Show's page, linked here, contains the audio, a transcript, a summary, a selection from the book, and many comments.
Sunday, August 18, 2013
Mark Bowden writes in the current issue of The Atlantic about the moral, military, and legal aspects of U.S. drone strikes against alleged terrorists. The article came out just as U.N. Secretary General Ban Ki-Moon criticized the use of armed drones and argued that they must be controlled by international law. We posted most recently on drones here--on the Al-Awlaki case, with links to the leaked DOJ white paper providing the legal justification for drone attacks.
Bowden surveys some of the legal landscape and concludes that drone attacks are legal. But:
Once the "war" on al-Qaeda ends, the justification for targeted killing will become tenuous. Some experts on international law say it will become simply illegal. Indeed, one basis for condemning the drone war has been that the pursuit of al-Qaeda was never a real war in the first place.
He also quotes John Yoo on the relative legality of drone attacks:
I would think if you are a civil libertarian, you ought to be much more upset about the drone than Guantanamo and interrogations. . . . Because I think the ultimate deprivation of liberty would be the government taking away someone's life. But with drone killings, you do not see anything, not as a member of the public. You read reports perhaps of people who are killed by drones, but it happens 3,000 miles away and there are no pictures, there are no remains, there is no debris that anyone in the United States ever sees. It's kind of antiseptic. So it is like a video game; it's like Call of Duty.
Thursday, August 15, 2013
District Judge Vicki Miles-LaGrange (W.D.Okl.) today permanently enjoined the Oklahoma state constitutional amendment that would forbid Oklahoma courts from considering Sharia law, international law, or "the legal precepts of other nations or cultures." The court ruled that the amendment violated the Establishment Clause. The ACLU posted its press release here.
The permanent injunction comes in round two of the litigation. In the earlier first round, the Tenth Circuit affirmed the district court's temporary injunction against the amendment.
Judge Miles-LaGrange adopted the Tenth Circuit's reasoning in concluding that the amendment violates the Establishment Clause. In particular, Judge Miles-LaGrange held that strict scrutiny applied under Larson v. Valente (1982) because the amendment discriminates among religions, and that Oklahoma couldn't provide a compelling government interest in enacting the provision. Quoting the Tenth Circuit:
[Defendants] do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.
Op. at 7.
Judge Miles-LaGrange also held that the anti-Sharia portion of the amendment couldn't be severed, because, she said, the whole purpose in adopting the provision was to forbid the use of Sharia law, and the amendment wouldn't have passed without the anti-Sharia provision.
This ruling is surely not the end of the case. But given the Tenth Circuit's earlier ruling, the result will almost surely be the same on appeal.
Tuesday, August 13, 2013
ConLawProf's own Ruthann Robson (CUNY) just published her fascinating new book Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes (Cambridge, also available at amazon.com). NPR's All Things Considered has a segment here; the Feminist Law Professors blog covered it here; and Robson's SSRN page for the Introduction and Table of Contents is here.
We'll post an interview with Robson soon. In the meantime, take a look at Robson's book blog, dressingconstitutionally.com. And here's the abstract from SSRN:
The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear -- or don't -- is ubiquitous.