Tuesday, November 22, 2016

Brief History of the Emoluments Clause - - - and Argentina

Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."  The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because  the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State." 

Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here;  And now might be a good time to reread Teachout's 2014 book Corruption in America).  [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]

While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain. 

Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful.  Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.

November 22, 2016 in Campaign Finance, Current Affairs, Executive Authority, Executive Privilege | Permalink | Comments (0)

CAC on Access to the Courts

Check out the Constitutional Accountability Center's recently published report on access to the federal courts, The Keystone of the Arch: The Text and History of Article III and the Constitution's Promise of Access to the Courts. The report is the most recent addition to the CAC's excellent Narrative Series.

In it, David Gans, Director of the Human Rights, Civil Rights & Citizenship Program at the CAC, explainss how the Supreme Court has restricted access in the name of Article III "cases and controversies" and at the same time has expanded state sovereign immunity far beyond the text and history of the Eleventh Amendment. "The same cramped vision of the role of the federal courts in righting wrongs and in enforcing the Constitution and federal laws has been at the heart of numerous other Rehnquist and Roberts Court rulings that pervert statutes, court rules, and bodies of judge-made laws to limit access to the federal courts by those asserting federal claims."

November 22, 2016 in News | Permalink | Comments (0)

What Might Jeff Sessions do as AG?

Many have criticized Trump's Sessions pick for AG based on his background, voting record, and prior statements. But, if confirmed, what might an AG Sessions actually do?

Roll back federal civil rights and voting-rights enforcement, tighten the screws on immigrants, increase surveillance, and enforce federal marijuana laws in states that have legalized marijuana, according to Politico; roll back civil rights, according to The Atlantic; seek harsh punishment for low-level crimes (among other things), according to the Brennan Center; and even "prosecute sanctuary cities," according to the Washington Times.

Sessions has his defenders. Hans von Spakovsky writes at Fox why "Jeff Sessions is the perfect pick for attorney general," in part because of his commitment to federalism (although this may be federalism of a selective sort--not applicable to marijuana and sanctuary cities, for example--we'll see). Mark Hemingway defends the pick at The Weekly Standard.

November 22, 2016 in News | Permalink | Comments (0)

Federal Three-Judge Court Finds Wisconsin's Gerrymander Scheme Unconstitutional

In its opinion in excess of 100 pages in Whitford v. Gill, the majority of a three judge court has concluded that Wisconsin's "gerrymandering" of districts was unconstitutional. 

The factual predicate for the case does not involve the most recent election.  Writing for the majority, Seventh Circuit Judge Kenneth Ripple began by explaining:

The plaintiffs have brought this action alleging that Act 43, the redistricting plan enacted by the Wisconsin Legislature in 2011, constitutes an unconstitutional partisan gerrymander. Specifically, they maintain that the Republican-controlled legislature drafted and enacted a redistricting plan that systematically dilutes the voting strength of Democratic voters statewide. We find that Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect.

In its discussion of "foundational case law," the court begins its discussion with the equal protection case of Reynolds v. Sims (1964), and concludes with League of United Latin American Citizens v. Perry (“LULAC”) (2006), although interestingly it does not cite Bush v. Gore (2000).  In considering the "close relationship between equal protection and associational rights," the court found Williams v. Rhodes (1968) especially instructive.  The court concluded:


We therefore believe that there is a solid basis for considering the associational aspect of voting in assessing the gravamen of the harm allegedly suffered by the plaintiffs. Indeed, in this case, the associational harm is especially important to the analysis because the testimony of the defendants’ witnesses as well as the plaintiffs’ demonstrate that, given the legislative practice and custom of Wisconsin, legislative action is controlled, as a practical matter, solely by the majority caucus. In such a circumstance, when the state places an artificial burden on the ability of voters of a certain political persuasion to form a legislative majority, it necessarily diminishes the weight of the vote of each of those voters when compared to the votes of individuals favoring another view. The burdened voter simply has a diminished or even no opportunity to effect a legislative majority. That voter is, in essence, an unequal participant in the decisions of the body politic.

It therefore rejected the notion that equal protection "must be limited to situations where the dilution is based on classifications such as race and population."

The court summarized the applicable doctrine as follows:

the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.

512px-1865_map-WisconsinThe court then exhaustively applied these standards to the complex facts, concluding that the plaintiffs had carried their burden.  As to remedy, however, the court deferred because the parties had not had the opportunity to completely brief the matter and ordered simultaneous briefs within 30 days with 15 days thereafter to respond.

The dissenting judge, William Griesbach, relied on Davis v. Bandemer (1986) (plurality), in which the Court refused to invalidate Indiana's redistricting scheme, to support his conclusion that "partisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government," and interestingly notes that

"It was only a term ago that the Court held by a 5 to 4 vote that it was constitutionally permissible to remove redistricting from the political branches. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n (2015). Adoption of the majority’s standard may well compel States to do so."

The incessant issue of gerrymandering may be headed to the United States Supreme Court yet again.

Appendix 2

 [image 1, Wisconsin map 1865 via; image 2, Appendix 2 to the court's opinion]

November 22, 2016 in Association, Elections and Voting, Equal Protection, First Amendment, Jurisdiction of Federal Courts, Speech, Standing | Permalink | Comments (0)

Monday, November 21, 2016

Court Punts on President's Authority to Fight ISIS

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

November 21, 2016 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Sunday, November 20, 2016

Daily Reminder: Equal Media Time Mandate Violates First Amendment

In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.

As the opinion by Chief Justice Burger phrased it:

the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.

Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.

 

November 20, 2016 in Current Affairs, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0)

FedSoc's National Lawyers Convention

The Federalist Society posted videos of all the panels and most of the speeches of its recent 2016 National Lawyers Convention. Check it out.

November 20, 2016 in News | Permalink | Comments (0)

Tillman on Trump and Emoluments

Check out Seth Barrett Tillman's (Maynooth U., Ireland) contribution to the debate over Trump and foreign gifts in the NYT. (We linked to Zephyr Teachout's piece in the debate here.) Tillman argues that the Emoluments Clause, or Foreign Gifts Clause, doesn't even apply to the President. Check it out.

November 20, 2016 in Executive Authority, News | Permalink | Comments (0)

Saturday, November 19, 2016

Levinson on the Twelfth Amendment

Check out Sandy Levinson's essay on the Twelfth Amendment, the latest addition to the National Constitution Center's excellent Interactive Constitution Project.

November 19, 2016 in News | Permalink | Comments (0)

The Shameful Korematsu Decision: Wrong Then, Wrong Today

Trump supporters who have cited the shameful Korematsu ruling in support of Muslim registries (and possibly worse) might take a look at Noah Feldman's explanation in the NYT why the case was "not correct when it was decided, and . . . is not correct today." Here's Eugene Rostow's longer piece that makes similar points, referenced by Feldman.

Seems like somebody in the Trump camp could put an end to this nonsense--these suggestions that a President Trump could use this despicable ruling as support for contemptible policies. Or at least they could speak out against it (that is, if they wanted to). A president-elect might even use a frank and open repudiation of these Korematsu claims as an opportunity for some public civic education.

We posted several years ago on Peter Irons's efforts calling for Supreme Court repudiation of Korematsu and the other internment rulings. The chatter from Trump supporters, invoking the disgraceful (and disgraced) Korematsu ruling, underscore why efforts like this are so important.

November 19, 2016 in Executive Privilege, News | Permalink | Comments (1)

Friday, November 18, 2016

Sixth Circuit Issues Mixed Preemption Ruling in Labor-Rights Case

The Sixth Circuit ruled today that a local "right-to-work" ordinance was not preempted under the National Labor Relations Act, but that provisions banning hiring-hall agreements and dues-checkoff requirements are preempted.

The mixed ruling hands a partial victory to union opponents (by upholding the local "right-to-work" ordinance) and a partial victory to unions (by striking the hiring-hall and dues-checkoff bans).

Hardin County, Kentucky, enacted a so-called "right-to-work" ordinance, which prohibited employers and unions from requiring union membership or dues as a condition of employment. The ordinance also prohibited "hiring-hall" agreements (which require prospective employees to be recommended, approved, referred, or cleared by a union) and "dues-checkoff" provisions (which require employers to automatically deduct union dues and fees). Unions sued, arguing that the ordinance was preempted.

The Sixth Circuit disagreed on "right-to-work" and agreed on hiring-hall and dues-checkoff provisions.

The court ruled that the "right-to-work" provision was saved from preemption and was not field-preempted. The court looked to Section 14(b) of the NLRA:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.

The court held that Hardin County law is "State law" under this provision, and so saved from preemption by the plain terms of the Act. The court went on to say that it couldn't be field-preempted under the NLRA, because, well, it was saved under Section 14(b). ("It follows that Section 14(b)'s explicit exception of the state right-to-work laws from preemption trumps operation of implicit field preemption.")

As to the hiring-hall and dues-checkoff bans, the court held that these did not fall within the Section 14(b) exception. It held that the dues-checkoff ban was preempted by the Labor Management Relations Act, and that hiring-hall ban was explicitly permitted under the NLRA.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

Local Effort to Ban Genetically Engineered Crops Preempted

The Ninth Circuit ruled today in Atay v. County of Maui that a local initiative to ban genetically engineered crops was preempted by federal and state law. The ruling ends this effort in Maui County, Hawaii, to ban GE crops.

The citizens of Maui County voted for an ordinance that banned the cultivation and testing of GE plants. The ordinance was designed "to protect organic and non-GE farmers and the County's environment from transgenic contamination and pesticides, preserve the right of Maui County residents to reject GE agriculture, and protect the County's vulnerable ecosystems and indigenous cultural heritage."

The Ninth Circuit ruled that the ordinance was preempted. The court held that the federal Plant Protection Act expressly preempted the GE ban as to crops that the Animal and Plant Health Inspection Service has deregulated. The PPA preemption provision says that "no State or political subdivision of a State may regulate the movement in interstate commerce of any . . . plant . . . plant pest, noxious weed, or plant product in order to control . . . eradicate . . . or prevent the introduction or dissemination of a . . . plant pest, or noxious weed, if the Secretary has issued a regulation or order to prevent the dissemination of the . . . plant pest, or noxious weed within the United States." The Secretary, through the APHIS, has done just that, so the court said that Maui's ban was preempted. (As to the interstate commerce element, the court said that GE seeds and plants flow across state lines, and that Congress specifically recognized in the PPA that "all plant pests, noxious weeds, plant products, articles capable of harboring plant pests or noxious weeds regulated under this chapter are in or affect interstate commerce.")

As to those crops not regulated by the APHIS, the court said that the PPA didn't impliedly preempt the ban, but Hawaii state law did. The court looked to Hawaii preemption law, which applies a "comprehensive statutory scheme" test to determine field-preemption, and held that Hawaii's statutory scheme fit the bill. (The Ninth Circuit handed down another case today with a similar state preemption holding, that one striking Kauai County's pesticide regulations.)

The ruling ends this local effort to ban GE crops.

November 18, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0)

States Lack Standing to Sue Over California's Egg Law

The Ninth Circuit ruled in Missouri ex rel. Koster v. Harris that six states lacked standing to sue California over its laws protecting hens that lay eggs. The ruling dismisses the case in favor of California (and its egg laws), unless and until the plaintiffs amend their complaint.

The plaintiffs, six egg-producing states, sued California after that state enacted a law setting certain standards for egg-laying hens. (The law bans the sale of eggs in the state by hens that are kept in cages where they can't lay down, stand up, extend their limbs, and turn around.) The plaintiffs alleged parens patriae standing on behalf of egg farmers in their states.

The Ninth Circuit ruled against them. The court said that the states couldn't show "an interest apart from the interests of particular private parties," the first of two additional elements of parens patriae standing (over and above the normal elements of standing). (The second additional element, not at issue here, is "[t]he State must express a quasi-sovereign interest.") The court held that the states didn't allege that California's law harmed their entire population, and that those affected (the egg farmers) could bring their own suit against California. The court rejected the plaintiffs' claim that the California law would cause a fluctuation in the price of eggs and thereby harm all consumers. It also rejected the claim that the plaintiffs had standing because California's law was discriminatory. (It wasn't; it applies to all hens, wherever they live. The lack of discrimination in the law also goes to the merits (although not at issue yet): under the Dormant Commerce Clause, a nondiscriminatory law is upheld only if its burdens on interstate commerce outweigh its benefits--a relatively low standard.)

The court instructed the district court to dismiss the case without prejudice, however, allowing the states to amend their complaint.

November 18, 2016 in Cases and Case Materials, Dormant Commerce Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Citizen Lacks Standing to Sue Senators Over Scuttled Supreme Court Nomination

Judge Rudolph Contreras (D.D.C.) ruled that a private citizen lacked standing to sue Senators McConnell and Grassley for failing to give President Obama's Supreme Court nominee, Judge Merrick Garland, a vote in the Senate.

Plaintiff Steven Michel brought the action under the Seventeenth Amendment, arguing that McConnell's and Grassley's stonewalling resulted in a loss of voice of his own home-state senators, and therefore a violation of his own right to vote for his home-state senators under the Seventeenth Amendment.

The court said that Michel lacked standing:

Mr. Michel has not shown that he has suffered an individualized injury such that he can maintain this action. This alleged diminution of his vote for United States Senators is the type of undifferentiated harm common to all citizens that is appropriate for redress in the political sphere: his claim is not that he has been unable to cast votes for Senators, but that his home-state Senators have been frustrated by the rules and leadership of the United States Senate. This is far from the type of direct, individualized harm that warrants judicial review of a "case or controversy."

November 18, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0)

Thursday, November 17, 2016

Teachout on Trump and the Emoluments Clause

Check out Zephyr Teachout's (Fordham) take on whether Donald Trump's foreign business interests could violate the Emoluments Clause, in the NYT. ("And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.")

November 17, 2016 in News | Permalink | Comments (0)

Ten Commandments at City Hall Violates Establishment Clause (even with other secular monuments)

The Tenth Circuit ruled last week in Felix v. City of Bloomfield that the city's monument to the Ten Commandments violated the Establishment Clause, even though the overall display included other, later-erected secular monuments.

The case arose when a city council member obtained council permission to place a Ten Commandments monument in front of city hall, along with other monuments that would celebrate the city's "history of law and government." The council member raised private money for the Ten Commandments monument (from churches, among other sources), and, after some fits and starts, placed the massive monument (over five feet tall, 3,400 pounds, sunk 14 inches into the ground) right in front of city hall. The city held an unveiling ceremony, which included religious references, statements, and the like, and some secular ones, too.

After this suit was filed, arguing that the Ten Commandments monument violated the Establishment Clause, the council member arranged for other monuments at city hall, including one for the Declaration of Independence, one for the Gettysburg Address, and one for the Bill of Rights.

The Tenth Circuit ruled that the Ten Commandments monument violated the Establishment Clause. The court wrote that an objective observer, reasonably informed about the monument, would have concluded that the city was endorsing religion. The court said that the text on the monument, its prominent location, the religious circumstances surrounding its financing and unveiling, and the timing of this lawsuit (just seven months after the monument's unveiling) all pointed toward endorsement.

The court recognized the city's effort to secularize the display with later, secular monuments, but said that this wasn't enough to scrub the religious history behind it.

November 17, 2016 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Tenth Circuit: State is Immune From Federal Slavery Claim

The Tenth Circuit ruled in Mojsilovic v. State of Oklahoma that the state's sovereign immunity barred the plaintiffs' forced-labor claim under the federal Trafficking Victims Protection Reauthorization Act. The ruling ends this case.

The plaintiffs, Danijela and Aleksandar Mojsilovic, were hired by the University of Oklahoma on H-1B visas to conduct DNA sequencing and issue typing and to make transfectants and tissue cultures. Their supervisor, Dr. William Hildebrand, forced them to work longer hours than permitted by their visas, without pay, for his private corporation, Pure Protein, on threat of having their visas revoked. The Mojsilovic's sued under the TVPRA, seeking monetary damages under the Act; the University asserted sovereign immunity; and the district court dismissed the case.

The Tenth Circuit affirmed. The court ruled that Congress enacted the TVPRA under its Commerce Clause authority (and not its Thirteenth Amendment authority), and so could not abrogate state sovereign immunity under the Eleventh Amendment. In any event, the court said that any abrogation wasn't sufficiently clear in the language of the TVPRA. (The TVPRA applies to "whoever," without specifically naming "states.")

The ruling, while not surprising under the Court's abrogation doctrine, illustrates the impact of the rule that Congress cannot abrogate state sovereign immunity using its Commerce Clause authority. It means that states and state agencies can get away with trafficking, slavery, involuntary servitude, forced-labor, and the like without incurring TVPRA liability.

Congress could, of course, change this by making clear that the TVPRA is enacted under the Thirteenth Amendment and clearly abrogating state sovereign immunity.

November 17, 2016 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, News, Opinion Analysis, Thirteenth Amendment | Permalink | Comments (1)

Wednesday, November 16, 2016

Sixth Circuit Says Bankruptcy Gives Detroit a Free Pass on Civil Rights

The Sixth Circuit ruled this week that the Bankruptcy Code prevented citizens and organizations in Detroit, which is is Chapter 9 bankruptcy proceedings, from suing the city for certain constitutional violations.

The ruling gives Detroit a free pass on certain civil rights--because it is in bankruptcy. Indeed, the court goes so far as to say (based on almost no authority) that because the financial conditions in Detroit are so bad, federalism considerations even more support a reading of the Bankruptcy Code that bars certain civil rights actions against the city.

The lesson: If you're out to have your constitutional rights violated, do it in a city that's not in bankruptcy, with really big financial problems.

The case arose when Detroit citizens and organizations sued the city in the Eastern District of Michigan for turning off thousands of residents' water for nonpayment and refusing to negotiate. The plaintiffs sought declaratory and injunctive relief; they brought due process and equal protection claims (among others) under 42 U.S.C. Sec. 1983 and Monell.

The district court then transferred the case to bankruptcy court and consolidated it with Detroit's Chapter 9 case. The plaintiffs moved for a TRO, and the city moved to dismiss pursuant to 11 U.S.C. Sec. 904 (in the Bankruptcy Code). That section says:

Notwithstanding any power of the court, unless the debtor consents or the plan so provides, the court may not, by any stay, order, or decree, in the case or otherwise, interfere with--

(1) any of the political or governmental powers of the debtor;

(2) any of the property or revenues of the debtor; or

(3) the debtor's use or enjoyment of any income-producing property.

The Sixth Circuit ruled, with little analysis, that each of these three conditions applied, and therefore the bankruptcy court had no power to issue declaratory or injunctive relief, and therefore the case must be dismissed.

Along the way, the court had some pretty surprising things to say about federalism and protection of rights. For example, the court wrote that Section 904 is essentially a federalism protection for a city like Detroit, and a city in bankruptcy--and especially one with really bad financial problems--ought (perhaps paradoxically) to have more protection against constitutional-rights claims (than a city in a regular district court) because of it. Here's how the court put it:

That a federal court's power should be more constrained in the chapter 9 context than in a typical Monell action also makes sense. Monell plaintiffs may claim damages and prospective injunctive relief, such as the implementation of a training program that better protects citizens' constitutional rights, provided they make the appropriate showing. We agree that the Tenth Amendment is not a barrier to a federal court's authority over a municipality in that setting.

But a discrete change in policy in a particular office or department of local government is far removed from the complete financial overhaul undertaken in a municipal reorganization. Detroit's case is a good example. "At the time of filing, the City had over $18 billion in escalating debt, over 100,000 creditors, hundreds of millions of dollars of negative cash flow," failing infrastructure, and "a crumbling water and sewer system." The bankruptcy court bore responsibility for approving a plan of adjustment equally vast in its aim to remedy these conditions. Concerns for state sovereignty loom larger with so much at stake. "As a state-federal cooperative enterprise conducted in delicate circumstances in which state sovereignty must be respected, Congress has been sedulous to assure that the bankruptcy power not be used in municipal insolvencies in a manner that oversteps delicate state-federal boundaries." The massive scale of a municipal bankruptcy simply provides more opportunities for excessive federal court interference.

Apparently only one other court, a bankruptcy court, had used federalism in the way the Sixth Circuit did to support its Section 904 analysis, because that's the only case (in two versions) that the Sixth Circuit cited in support of its federalism claims.

Surprisingly, the court said that this reasoning applies equally to the plaintiffs' request for declaratory relief. (It's not entirely clear how declaratory relief alone interferes with any of the three categories in Section 904.)

All this said, the ruling probably doesn't extend to other civil rights claims that don't involve a "contract" with the government. This case ended up in the bankruptcy court because the residents had a water-services "contract" with the city that fell under the city's bankruptcy. A different kind of claim (police brutality, for example) wouldn't involve a "contract," (hopefully) wouldn't get kicked to bankruptcy, and therefore wouldn't get dismissed under Section 904.

November 16, 2016 in Cases and Case Materials, Federalism, News, Opinion Analysis | Permalink | Comments (0)

CFP: Loving v Virginia Symposium

CALL FOR SUBMISSIONS

50 YEARS OF LOVING:

SEEKING JUSTICE THROUGH LOVE AND RELATIONSHIPS

Symposium, March 23-24, 2017

Creighton School of Law, Omaha, Nebraska

The Creighton Law Review, Creighton’s 2040 Initiative, and the Werner Institute invite you to contribute to the Law Review’s June 2017 issue and/or to attend the 50 Years of Loving symposium hosted by the 2040 Initiative and the Werner Institute at the Creighton School of Law. The symposium will explore how the 1967 U.S. Supreme Court decision of Loving v. Virginia has influenced U.S society institutionally, demographically, and relationally.

Race in the United States has historically been socially constructed through interlocking cultural narratives, including law, and cultural practice, including institutions. Racism is a social system enacted and perpetuated by the interactions and relationships of individual people. Exploring the disruptive effects of the interracial “mixing” protected by Loving v. Virginia offers an opportunity to deepen understanding of systemic racism and to develop systems-based strategies for continuing the struggle for social justice. At a time when the demographics of the U.S. are shifting away from a white majority, deconstructing systemic racism is an essential project.

Loving v. Virginia, 388 U.S. 1 (1967), ended legal prohibitions against interracial marriage in the U.S. By eliminating of longstanding legal sanctions against “miscegenation,” Loving disrupted the pre-existing social system. Loving rejected racial separation and hierarchy and endorsed relationships across previously uncrossable racial lines. Since Loving, the number of interracial marriages has grown significantly: “Nearly 15 percent, or one in seven, of all new marriages in 2008 were between people of different races or ethnicities.”*

The effects of these marriages extend beyond those who are themselves married. “[M]ore than a third of all adults surveyed reported having a family member whose spouse is of a different race or ethnicity – up from less than a quarter in 2005.”* Since Loving, the proportion of the U.S. population with multiple racial heritages has grown dramatically. Moreover, the children born as a result of Loving also have disrupted the social construction of race itself, with more people self-identifying as of more than one race, biracial, multiracial, or mixed.

The Law Review seeks submissions exploring these issues – to range from reflections (up to 1000 words) and essays (approximately 2500-3000 words) to articles (no more than 7000 words, not including references and footnotes). Draft abstracts of up to one page and queries may be addressed to Research Editor Sean Nakamoto at seannakamoto@creighton.edu no later than January 15, 2017. Final submissions will be March 20, 2017. There will be an opportunity at the symposium for selected authors to discuss their submissions at the 50 Years of Loving symposium at Creighton University in March, 2017.**

Authors are also encouraged to join the moderated online discussion on the effects of the Loving decision on our society hosted by the 2040 Initiative and ADRHub at http://blogs.creighton.edu/creighton2040/50-years-of-loving-moderated-online-discussion. Selected excerpts from this discussion will also be featured in the June 2017 Creighton Law Review edition. Discussion entries should respond to the following question: From the perspective of your academic discipline or professional institution, what are the questions, issues, or tensions that have arisen out of 50 Years of Loving?

 

*john a. powell, Racing to Justice (2012)

** Contact Amanda Guidero at AmandaGuidero  AT  creighton.edu for more information on the symposium and opportunities to present your work.

November 16, 2016 in Conferences, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Race, Scholarship, Theory | Permalink | Comments (0)

Enclave Clause is No Restriction on Federal Land Taking for Oneida Nation

The Second Circuit last week rejected claims that the federal government exceeded its authority and violated the Enclave Clause in taking about 13,000 acres of land in central New York into trust on behalf of the Oneida Indian Nation of New York.

The ruling is a victory for the Nation and its ability to self-govern. In particular, under federal land-into-trust law, it means that the Nation's land is not subject to state and local taxes and zoning and regulatory requirements, and that (unless the Nation consents) New York lacks criminal and civil jurisdiction over Nation members on the land.

The ruling is also a reaffirmation of the federal government's land-into-trust powers, by which the federal government can take state land into trust for Native American nations, and the very limited restrictions on federal power to take and regulate land under the Enclave Clause. (The Enclave Clause, Art. I, Sec. 8, cl. 17, is a favorite of those who argue against federal authority to hold and regulate lands other than Washington, D.C., even though that reading is not supported by the text, history, or precedent of the Clause.)

The case arose when the federal government took about 13,000 acres of land in New York into trust on behalf of the Oneida Indian Nation, pursuant to authority under the Indian Reorganization Act. (The dispute goes back much farther, however.) The Oneida Nation already owned the land--it purchased it on the private market--but sought the trust in order to govern itself and avoid state taxes and certain regulations. Plaintiffs (two towns, a civic organization, and some individuals) sued, arguing that the land-into-trust procedures violated the Indian Commerce Clause, state sovereignty, and the Enclave Clause. (Plaintiffs asserted that they'd be harmed by the Nation's casino, and the inability to collect taxes on the land where it sits.)

The Second Circuit flatly rejected those claims. The court ruled that under the Indian Commerce Clause the federal government has plenary authority to regulate with respect to Native American nations, including authority to take land in trust for nations, and that this authority wasn't correlated to the Interstate Commerce Clause or otherwise bound only to purely intra-state activities. The court also ruled that no constitutional provisions protected "state sovereignty" as against the land-into-trust procedures.

As to the Enclave Clause claim, the court, drawing on longstanding precedent, wrote that "state consent is needed only when the federal government takes 'exclusive' jurisdiction over land within a state." (This follows from precedent and the plain language of the Clause itself: "The Congress shall have Power . . . To exercise exclusive Legislative in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings[.]") Because the federal government's land-into-trust procedures leave some authority to a state (like civil and criminal law as against non-members, and the power to impose a sales tax on sales to non-members), it did not need "Cession of" the state under the Enclave Clause.

November 16, 2016 in Cases and Case Materials, Congressional Authority, Federalism, News, Opinion Analysis | Permalink | Comments (0)