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)

A Conversation with the Chief Justice of the South African Con Court

Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights.  The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated.  It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.

Cohen, a contributor to U.S. News & World Report and The Huffington Post, is a former foreign law clerk to Chief Justice Mogoeng Mogoeng, whom he interviewed for this piece.

Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":

Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system.  I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.

Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society.  Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa.  We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.

On the use of foreign law:

Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries.  With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions.  This is particularly true with regards to the area of socioeconomic rights and property law.

On closing the gap between reality and an aspirational Constitution:

What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.

I think that the Court, however, has done fairly well in its efforts to close that gap.  Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .

On the next big issues:

The next major court battles will involve the agricultural sector.  If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group[] . . . .  For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively.  So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.

April 15, 2014 in Comparative Constitutionalism, International, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Circuit Says Magistrates Can't Rule on 2255 Motions

The Eleventh Circuit ruled this week in Brown v. U.S. that a magistrate judge lacked authority to enter final judgment on a criminal defendant's motion to vacate his sentence. 

The case revisits, but then dodges, the issue whether a magistrate's ruling on a motion under 28 U.S.C. 2255 violates Article III.

The court said that the Magistrate Act, 28 U.S.C. 636(c), which authorizes magistrates, with the consent of the parties, to enter a final judgment on any "civil matter," did not authorize a magistrate to enter a final judgment on a Section 2255 motion to vacate a sentence.  While the court recognized a Section 2255 motion was a civil matter, it said that Section 2255 wasn't a "civil matter" for purposes of Section 636(c).

Why?  According to the court, because to so conclude could result in a violation of Article III.

The court recognized that Section 636(c) is constitutional on its own--that is, that magistrates are constitutional in "civil matters."  But it said that special problems with a magistrate ruling on a Section 2255 motion made Section 636(c) constitutionally suspect.  In particular, when a magistrate enters a final judgment on a Section 2255 motion, that magistrate sits "in a quasi-appellate capacity, with the power to vacate the judgment the district court entered in the case."  "It is axiomatic that non-Article III judges [magistrates] may not revise or overturn Article III judgments."  Moreover, if a magistrate were to enter a final judgment on a Section 2255 motion, there's no procedure for district court review.  Yet, "the authority of a district court to review the magistrate judge's decision, even if neither party invokes such authority, is essential to ensuring that Article III values are protected."

These problems aren't new.  The Fifth Circuit recognized them, too, and in 2001 in U.S. v. Johnston ruled that a delegation of Section 2255 motions to a magistrate violated Article III.  (Prof. Ira Robbins (AU/WCL) helpfully explains all this in this 2002 article in the Federal Courts Law Review.  Both the article and Brown contain nice histories of magistrates in the Article III courts.)

But the Eleventh Circuit followed a different tack.  Instead of ruling that the constitutional problems with this kind of delegation resulted in a violation of Article III, it avoided the constitutional question by ruling (stretching and straining) that Section 2255 motions aren't "civil matters" for the purpose of Section 636(c) delegations to magistrates, and therefore as a matter of statutory construction the magistrate lacked authority to enter a final judgment on the Section 2255 motion.

For Brown, all this means that the magistrate's final judgment on his Section 2255 motion is invalid, and that he'll have to start over and have an Article III judge, not a magistrate, rule on his motion.

April 11, 2014 in Cases and Case Materials, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

No Invalid Delegation in Sex Offender Registration Act

The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.

The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.

Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006.  Congress passed SORNA in July 2006.  Cooper was charged with failing to register in 2012.

Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation.  SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."

Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S.  That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them.  Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable."  We posted on the case and Justice Scalia's concern here.

But the Third Circuit rejected Cooper's claim.  The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:

In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority.  This is all that is required under the modern nondelegation jurisprudence.

The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."

April 11, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit: No Standing to Sue EPA for (lack of) Carbon Monoxide Regs

The D.C. Circuit ruled today in Communities for a Better Environment v. EPA that a group of environmental organizations lacked standing to sue the EPA for its failure to regulate carbon monoxide based on its impact on "public welfare" under the Clearn Air Act.  In short, the court ruled that the plaintiffs couldn't demonstrate that the EPA's failure to issue secondary standards for carbon monoxide caused the effects of global warming that the plaintiffs complained about.

The ruling contrasts with Massachusetts v. EPA, where the Supreme Court ruled that a state had standing to challenge the EPA's denial of a petition asking the EPA to regulate carbon dioxide.  The Court said that the state sufficiently demonstrated that it stood to suffer harms resulting from global warming (like loss of coastline from rising sea levels) if the EPA did not regulate carbon dioxide.

This case involved a different kind of regulation and a different air pollutant, but the same core theory of standing.  The Clean Air Act directs the EPA to set secondary standards for one of six air pollutants (including carbon monoxide) at a level "requisite to protect the public welfare."  The "public welfare" includes welfare of animals, the environment, and climate, among other things.  (The Act also requires the EPA to set primary standards for the six air pollutants at a level "requisite to protect the public health," that is, human health.)  The EPA decided in 2011 not to issue secondary standards for carbon monoxide, because the Agency determined that secondary standards for carbon monoxide were not needed to protect the public welfare--that standards for carbon monoxide wouldn't protect animals, the environment, or climate.  The EPA issue primary standards for carbon monoxide, however.

The plaintiffs sued, challenging (1) the EPA's primary standards for cabon monoxide and (2) the EPA's decision not to set secondary standards. 

In response to the government's motion to dismiss on the second claim, the plaintiffs argued that they had standing under Massachusetts v. EPA.  The court disagreed, saying that the plaintiffs didn't demonstrate the connection between the EPA's decision not to set standards and the harm they alleged.  The court explained:

But even assuming for the sake of argument that Massachusetts v. EPA grants standing for plaintiffs other than States, petitioners here have failed to establish the causation element of standing.  Petitioners claim that EPA's decision not to set a secondary standard for carbon monoxide will worsen global warming and in turn displace birds that one of petitioners' members observes for recreational purposes.  But petitioners have not presented a sufficient showing that carbon monoxide emissions in the United States--at the level allowed by EPA--will worsen global warming as compared to what would happen if EPA set the secondary standards in accordance with the law as petitioners see it.  Moreover, citing and analyzing many scientific studies, EPA explained that carbon monoxide's effects on climate change involve "significant uncertainties."

The court also rejected the plaintiffs' claims against the primary standards on the merits.

 

April 11, 2014 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Muller on Standing and Political Question in Kerr

Derek Muller (Pepperdine) argues over at Jurist.org that the Tenth Circuit dramatically overreached in its recent ruling in Kerr v. Hickenlooper.  Recall that the court ruled in that case that a group of state legislator had standing to challenge under the Guaranty Clause the state's Taxpayer Bill of Rights, or TABOR, which requires a popular vote before the legislature can raise taxes, and that the case did not raise a political question.  We posted here.

Muller says that court's conclusions on both standing and political question are out of step with longstanding Supreme Court jurisprudence and, if upheld, would result in "extraordinary consequences":

It would create many more opportunities for individual legislators in each state--and perhaps those in both houses of Congress--to sue on generalized grounds of political disempowerment, or even compel the executive to act pursuant to legislative demands.  Such would bring about serious judicial inquiries into the validity of the initiative and referendum processes themselves--which has been a large part of most states' governance for the past hundred years.  Moreover, it would focus judicial scrutiny on the manner in which each state governs themselves--effectively ushering in a power shift away from the people--and their ability to enact policy objectives via popular vote--and towards the federal court system.

The Tenth Circuit remanded the case, and the district court is preparing for trial.  We'll surely see this one again.

April 10, 2014 in Cases and Case Materials, Congressional Authority, Jurisdiction of Federal Courts, News, Political Question Doctrine, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Obamacare Challenges in the D.C. Circuit

Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit.  One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little  Sisters case and, more recently, Notre Dame's case at the Seventh Circuit.  (Those rulings were on injunctions against the accommodation pending appeal.  Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit.  In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal.  The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.) 

The other case, Sissel v. HHS, is less well known.  It challenges the universal coverage provision, or the so-called individual mandate.  Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause.  But it originated in the Senate.  Plaintiffs say it's therefore invalid.

Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases.  That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees).  Judge Rogers is also on the panel.

April 9, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Constitutional Design in the Muslim World

Northwestern University Law School just wrapped up its 2013-2014 colloquium series on Constitutional Design in the Muslim World--an outstanding series of presentations convened by Profs. Erin Delaney and Kristen Stilt.  The program's web-site contains a list of presenters with links to their papers, videos of presentations, links, and a blog.  Check it out.

April 9, 2014 in Comparative Constitutionalism, Conferences, International, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, April 4, 2014

Why McCutcheon Could Be Bad for the GOP

Peter Beinart argues over at The Atlantic that the Court's ruling this week in McCutcheon--that aggregate limits on campaign contributions violate the First Amendment--could haunt the Republican Party.  His claim: Over the long haul, McCutcheon will contribute to the Republican Party's reputation as the party of plutocrats.

From the piece:

A CNN poll this February found that . . . Americans . . . said Republican policies favored the rich over the middle class by a whopping 46 points.

The Supreme Court has now made overcoming that reputation harder. 

. . .

In the 1970s, a liberal Supreme Court fueled right-wing cultural populism.  Today, a conservative Supreme Court is breeding left-wing economic populism.  For the contemporary GOP, the danger of looking like the plaything of America's super-rich outweighs the benefits of increased support from America's super-rich.  Even in the age of the Roberts Court, winning elections generally requires more than just raising more money.  It requires winning more votes.

April 4, 2014 in Campaign Finance, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Court Strikes Aggregate Campaign Contribution Limits

A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits.  The five-justice majority ruled that the limits violated the First Amendment.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

Our most recent post on the case is here.

Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties.  Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate.  (The Court said that base limits are still constitutional, as are disclosure requirements.)

The majority said that under aggregate limits

A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.

It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.

The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.

The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.

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