Sunday, February 9, 2014
The Eleventh Circuit last week in Alabama Education Association v. Governor of Alabama reversed the district court's grant of a preliminary injunction against enforcement of a state law prohibiting public employees from arranging salary deductions for payments to organizations for use for "political activities." The ruling means that the case goes back to the district court, with a heavy thumb on the scale in favor of upholding the law against the plaintiffs' First Amendment challenge.
The law at issue, Alabama Code Sec. 17-17-5, prohibits public employees from "arrang[ing] by salary deduction or otherwise" for payments to (1) political action committees or (2) organizations that use any portion of the dues for "political activity." (Emphasis added.) The Act goes on to define "political activity" as
a. Making contributions to or contracting with any entity which engages in any form of political communication, including communications which mention the name of a political candidate.
b. Engaging in or paying for public opinion polling.
c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.
d. Engaging in or paying for any type of political advertising in any medium.
e. Phone calling for any political purpose.
f. Distributing political literature of any type.
g. Providing any type of in-kind help or support to or for a political candidate.
The Alabama Education Association, its political action committee A-VOTE, and some individual members brought a pre-enforcement challenge, arguing that the Act violated free speech on its face. In particular, they claimed that the "or otherwise" language rendered the Act overly-broad (because it would limit private forms of payment, not facilitated by the government, for political activities), and that the phrase "political activity" was unconstitutionally vague.
The Eleventh Circuit reversed the lower court's preliminary injunction against enforcement of the Act. The Eleventh Circuit's ruling hinged on the answers to questions its certified to the Alabama Supreme Court, asking the state court to define "or otherwise" and "political activities." According to the Alabama Supreme Court, the phrase "or otherwise" prohibited only the use of state mechanisms to support politically active organizations, and not private forms of payment not facilitated by the government. Citing Ysursa v. Pocatello Educ. Ass'n, the Eleventh Circuit held that "[t]his compels the conclusions that the Act only declines to promote speech, rather than abridging it, and that the Act does not implicate any constitutionally protected conduct, much less a substantial amount." The court said that the plaintiffs therefore were unlikely to succeed in their over-breadth challenge.
As to the vagueness challenge, the Eleventh Circuit said that whatever the meaning of "political activity," it at least included activity in which the plaintiffs were involved--that is, electioneering activities--and that therefore under Village of Hoffman Estates v. Flipside, the plaintiffs were unlikely to succeed on their void-for-vagueness challenge.
Before the opening of each town hall meeting, the Mayor recites a prayer - - -
Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen.
Although a government official - - - rather than someone selected by government officials - - - recites the prayer (in French), the similarties to Town of Greece v. Galloway, argued before the United States Supreme Court in November, are obvious. However, the religious practice of the City of Saguenay in the province of Quebec, is going before the Supreme Court of Canada in Mouvement laïque québécois (MLQ) v. City of Saguenay. (Americans might analogize the Quebecois MLQ to American organizations such as Freedom from Religion).
There's a terrific discussion of the case by Victor Yee over at "The Court," a blog from Osgoode Hall about the Supreme Court of Canada.
Any decision by the Supreme Court could have implications for Quebec's controversial attempt to regulate the wearing of "ostentatious" religious gear by public employees and might draw on the Supreme Court of Canada's decision in R. v. N.S., involving the right of a witness in a criminal prosecution to wear a veil. Although the challenge in City of Saguenay is akin to a US Constitutional "Establishment Clause" challenge and the Canadian doctrine of government religious neutrality.
Given that the extant constitutional rights have proven ills-suited toward recognizing the rights of homeless persons (even to have a blanket or to be fed), Professor Sara Rankin's article, "A Homeless Bill of Rights (Revolution)," available in draft on ssrn, is an important look at state constitional efforts. Rankin surveys current efforts to advance homeless bills of rights in nine states and Puerto Rico, concluding that such efforts are likely to have more of an incremental social impact than any immediate legal impact.
Homeless bills of rights present an important opportunity to impact American rights consciousness. The emergence of these new laws may encourage housed Americans to confront—and perhaps one day, overcome—our persistent, deeply-rooted biases against the homeless. Regardless of whether homeless advocates’ ideal provisions are enacted, enforced, or implemented in the near future, even modest versions of these new laws can stake an important claim in the movement building process. After all, the U.S. Declaration of Independence and the Bill of Rights remained dormant and aspirational for years after their enactment, but like all declarations of fundamental rights, these documents set crucial goals for society to achieve over time.
Certainly, however, such laws would counteract the increasing "ciminalization" of homelessness that she discusses:
Of 234 cities surveyed by the National Law Center on Homelessness and Poverty (NLCHP), 53 percent prohibited begging or panhandling in public places, 40 percent prohibited camping in public places, and 33 percent prohibited sitting or lying down in public places. These laws authorize police to perform “sweeps” to clear public areas of homeless people. Police sweeps often result in the confiscation and destruction of personal belongings, including identification, documentation, medications, and other property of sentimental value.
Rankin's article is an important read for anyone considering the constitutional parameters of addressing homelessness.
Sexual Orientation Change Efforts Ban: Petition for Certiorari After Ninth Circuit Declines En Banc Review
Recall that the Ninth Circuit upheld the California statute in Pickup v. Brown in August 2013. The panel concluded that on the continuum between speech and conduct, California's SB 1172 landed on conduct, "where the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that California legislature acted irrationally.
The Ninth Circuit has issued an opinion and rejected en banc rehearing over a dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta. The dissenting opinion began with a forceful "issue statement" worthy of an oral argument:
May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.
Interestingly, the original panel - - - Judge Susan Graber, joined by Chief Judge Alex Kozinski and Judge Morgan Christen - - - included an amended panel opinion accompanying the denial of the en banc rehearing. This amended panel opinion adds two passages that discuss United States Supreme Court precedent on the "conduct" issue with which the dissenters disagreed.
First, Judge Graber adds a brief discussion [in italics below] before the more detailed discussion of Ninth Circuit precedent:
The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
Second, and more substantially, the amended opinion includes a discussion of Holder v. Humanitarian Law Project upon which the dissenting opinion relied, as well as expanding the reliance on Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”):
Plaintiffs contend that Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), supports their position. It does not.
As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).
In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.
This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment.
It's fair to say that these passages - - - incorporating United States Supreme Court cases - - - are intended to communicate to the Supreme Court Justices why the Ninth Circuit panel opinion does not merit review.
A split in the circuits does not seem likely. A New Jersey federal judge upheld the similar New Jersey statute prohibiting sexual conversion therapy under similar rationale.
It's being called the "no blankets for the homeless" ordinance and there's a petition directed to the Mayor of Pensacola, Florida to "stop" the ordinance as freezing temperatures come to the usually subtropical clime.
Passed in May 2013, the ordinance at issue is directed at prohibiting camping. Section 8-1-22 of the Code of the City of Pensacola, Florida, provides:
(1) For purposes of this section, "camping" is defined as:
(a) Cooking over an open flame or fire out-of-doors; or
(b) Bathing in public for purposes of personal hygiene; or
(c) Sleeping out-of-doors under one of the following circumstances:
(i) adjacent to or inside a tent or sleeping bag, or
(ii) atop and/or covered by materials such as a bedroll, cardboard, newspapers, or
(iii) inside some form of temporary shelter.
(2) Camping is prohibited on all public property, except as may be specifically authorized by the appropriate governmental authority.
(3) Camping is prohibited on all property in the City used for residential purposes; provided, however, that camping is permitted on such property with the permission and consent of the property owner.
(4) An individual in violation of this ordinance who has no private shelter, shall be advised of available shelter in the City of Pensacola or Escambia County, in addition to any penalties of law.
Like many ordinances directed at the homeless, the constitutional inquiries begin with Clark v. Community for Creative Nonviolence, decided by the Court in 1984, and upholding a federal Park Service regulation against sleeping or camping in non-designated areas, including the National Mall.
In Clark, the First Amendment was clearly applicable because the regulation was being applied to a demonstration, including tent cities, directed at the plight of the homeless. Nevertheless, even under a First Amendment analysis, the Court upheld the regulation. Clark was likewise invoked regarding the Occupy protests, applicable to those that were on public land.
But whether the First Amendment applies at all will depend upon whether courts would construe covering one's self with a blanket - - - or otherwise - - - is expression. Recall that the Sixth Circuit recently held "begging" to be protected speech under the First Amendment. But "wearing" a blanket may have a higher hurdle to overcome, an issue that permeates the clothing as expression cases.
But whether or not the anti-blanket ordinance might survive a First Amendment challenge is not necessarily the point of the petition calling for the ordinance's end. The petition is less about expression than about "humanity."
Tuesday, February 4, 2014
The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.
The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset. But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation. Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility. So officials denied his accommodation.
Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset. ROSP staff discovered the food and threatened to charge Wall with possessing contraband. As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."
Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause. The district court dismissed the case, but the Fourth Circuit reversed.
The court held that the policy violated the four-part test in Turner v. Safley:
First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs. Strict application of such a rule fails even a rational connection requirement. . . .
[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .
[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .
Finally, we are satisfied that there existed "easy [and] obvious alternatives" to the challenged regulation.
The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.
The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy. Applying the "voluntary cessation" doctrine, the court wrote, "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated."
Thursday, January 30, 2014
The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.
The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts. It underscores federal supremacy, even in the area of state and local taxes. It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.
The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell. Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed."
The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.
But that's not the interesting part. The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.
The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority. "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity." The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty. "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."
The court also rejected the plaintiffs' contentions that the exemption violated federalism principles. The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie.
The Seventh Circuit ruled this week in Annex Books, Inc. v. City of Indianapolis that the city's law requiring adult bookstores to close between midnight and 10:00 a.m. every day and all day Sunday violated the First Amendment. The ruling means that Indianapolis can't enforce its law, although it might write a new law that regulates or zones adult bookstores, short of requiring them to close.
The court took particular issue with Indianapolis's weak reason for the law: fewer armed robberies at or near adult bookstores. The court wrote that the justification isn't supported by data. And as to the secondary effects doctrine, it said the doctrine doesn't work when the secondary effects impact only the bookstores themselves and their patrons:
The secondary-effects approach endorsed by Almeda Books and Playtime Theatres permits governments to protect persons who want nothing to do with dirty books from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed against the businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.
The court also took issue with the required closure:
That the City's regulation takes the form of closure is the nub of the problem. . . . The benefits come from closure: shuttered shops can't be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.
NYC's practice of stop and frisk has been controversial in the streets and in the courts. Recall
that in August 2013, Judge Shira Scheindlin found the New York City Police Department's stop and frisk policies unconstitutional as violative of equal protection. Judge Scheindlin's exhaustive opinion in Floyd v. City of New York was accompanied by an extensive order, setting out remedies, including monitoring. By a very brief opinion, Judge Scheindlin's decision was stayed by the Second Circuit - - - and Judge Scheindlin removed. The Second Circuit later reaffirmed its decision, but in more moderate and explanatory tones.
But before the Second Circuit could issue an opinion on the merits, NYC elected a new mayor, who today announced an agreement in Floyd v. City of New York. Mayor Bill deBlasio (pictured below) announced that NYC has asked for a remand of the appeal to the district court, and has agreed to a court-appointed monitor who will serve for three years, overseeing the NYPD’s reform of its stop-and-frisk policy and reporting to the court.
RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners. RFRA, 42 USC § 2000bb–1, provides that
(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive means of furthering that compelling governmental interest.
Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment. RFRA's findings explicitly state that :
(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.
The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores. Thus, RFRA cannot constitutionally be applied to state laws.
So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but" quickly added. But RFRA still applies to the federal government. Or so we assume?
That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton. Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government. The brief argues that the "plain language" of the statute
establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.
Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional
has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it. The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.
Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States. That may seem highly unlikely, but stranger things have happened.
Wednesday, January 29, 2014
After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview. Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:
Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."
Scotto: "Why? I just wanted to ask you..."
Grimm: "If you ever do that to me again..."
Scotto: "Why? Why? It’s a valid question."
Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."
The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.
Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time. Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas. The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.
Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House." The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.
Tuesday, January 28, 2014
President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour. He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.
Can he do this?
Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution. But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch. In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.
Republicans who have criticized the action point to the federal statutory minimum wage. They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors. Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ." FLSA Section 206.
But the FLSA sets a floor. Nothing in the FLSA prevents an employer from paying more than the minimum. And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum.
Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action. The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector. The Act thus gives the President a great deal of authority to prescribe policies related to government procurement. For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ." 40 U.S.C. Sec. 121.
The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy. The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work. Indeed, there's a long line of similar requirements imposed by Presidents.
The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority. The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.
Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage. And that's not even considering any inherent Article II authority the President may have over government contractors.
That's not to say that Congress doesn't have a check. If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage. (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.) But current law doesn't seem to do that.
For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.
First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations
New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.
The bill, in section 2 provides:
No college in this state may use state aid provided directly to such college to: fund an academic entity, provide funds for membership in an academic entity or fund travel or lodging for any employee to attend any meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an official action boycotting a host country or higher education institutions located in such country.
Section 3 extends the penalty to a deprivation of all funds:
Notwithstanding any law to the contrary, no college shall be eligible for state aid during the academic year that such college is in violation of subdivision two of this section.
Like many laws, Bill S6438-2013 little sense without understanding its context. In December, the American Studies Association membership adopted a Resolution stating that it
endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.
The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here.
In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006. Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds." The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association. The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).
Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied. On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers. The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."
In the Court's most recent unconstitutional conditions case, Agency for International Development v. Alliance for Open Society, the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an "anti-prostitution pledge." Again, the opinion was authored by Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas). The fact that the pledge was compelled speech was central.
In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment. Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment.
Thus, it would seem that the state could not directly prohibit a boycott. The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.
National Constitution Center President and CEO Jeffrey Rosen recently discussed the constitutional challenges to the Affordable Care Act with Prof. Jonathan H. Adler (Case Western) and Simon Lazarus (Constitutional Accountability Center). Here's the video:
Monday, January 27, 2014
Tunisia's National Constituent Assembly yesterday approved a new constitution, one of the most progressive in the region, three years after the overthrow of the long-time ruler Zine el-Abidne Ben Ali. Al Jazeera reports here; BBC here; the Guardian here; Reuters here.
According to reports, the new document says that Islam is the nation's religion (and forbids "attacks on the sacred"), but it does not require religious law, and it guarantees freedom of religion. Moreover, it guarantees equality between men and women and protects women's rights.
The new constitution divides executive authority between a prime minister and president. Prime Minister Mehdi Jomaa announced earlier that a caretaker cabinet would govern until the country holds elections.
Sunday, January 26, 2014
The University of Iowa Dean has announced the death of ConLawProf Randall (Randy) Bezanson (pictured).
There will be a memorial at University of Iowa; more information here.
Tenth Circuit Holds Colorado's Campaign Finance Scheme Unconstitutional as a Violation of Equal Protection
In its opinion this week in Riddle v. Hickenlooper, a panel of the Tenth Circuit unanimously held unconstitutional a differential contribution limit in the Colorado campaign finance scheme as violating the Equal Protection Clause.
The scheme, deriving from Colorado's Amendment 27 and statutes, provided that the campaign limit for contributions to candidates who ran in a primary election, even if unopposed, was $200 per person and there was an additional campaign limit of $200 per person for all candidates running in the general election. This meant that a candidate who was a member of a major party holding a primary had a per person limit of $400, while minor party and write-in candidates had a per person limit of only $200.
The panel held that because "the statutory classification affects a fundamental right, the right to political expression" the correct equal protection standard should be a "standard that is at least as rigorous as the standard applied under the First Amendment," and that under standard the classification fails. The panel found that the anti-corruption (or appearance of corruption) governmental interest was "sufficiently important," but the means chosen "are ill-conceived to advance these interests."
The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. But the Defendants have never made such a suggestion. In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest.
Concurring, Judge Gorsuch began by stating:
I confess some uncertainty about the level of scrutiny the Supreme Court wishes us to apply to this contribution limit challenge, but I harbor no question about the outcome we must reach. My colleagues are surely right that, as applied, Colorado’s statutory scheme offends the Constitution’s equal protection guarantee, whatever plausible level of scrutiny we might deploy.
Interestingly, both the concurring opinion and the panel majority opinion, authored by Judge Bacharach, clearly rest their analysis on the Equal Protection Clause, and thus do not reach the First Amendment challenge. Nevertheless, First Amendment doctrine and precedent permeate the reasoning. Yet given that the Colorado campaign finance scheme results in such an untenable classification, the conclusion of an equal protection classification seems the right one.
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Saturday, January 25, 2014
This 132nd anniversary of the birth of Virginia Woolf (born Virginia Stephen on January 25, 1882), is suitable for reading Jeremy Bradley's essay, Virginia Woolf and The Judicial Imagination, available on ssrn.
literature brings with it evaluative commitments on the part of the reader, commitments that mirror a judge’s recognition of the significance of vulnerable events, a focus on the epistemological value of emotion, and on the competing choices human agents often face. At the same time, the practical aspect of this evaluative process is the very quality that makes analysing literature ‘so unlike dogmatic abstract legal processes. Thus to supplement judicial decision-making with imagination is to redefine what is meant by effective decision-making.
Whether or not judges can integrate empathetic imagination - - - or even whether Virginia Woolf could actualize empathy in her own life when it came to her "servants" as I've discussed in "A Servant of One's Own," available on ssrn - - - the project is an important one if we seek to achieve "justice" rather than merely legal outcomes.